[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]







   PROTECTING U.S. CITIZENS' CONSTITUTIONAL RIGHTS DURING THE WAR ON 
                                 TERROR

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 22, 2013

                               __________

                           Serial No. 113-21

                               __________

         Printed for the use of the Committee on the Judiciary





[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





      Available via the World Wide Web: http://judiciary.house.gov

                                _____

                  U.S. GOVERNMENT PRINTING OFFICE

81-173 PDF                WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001







                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
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                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel











                            C O N T E N T S

                              ----------                              

                              MAY 22, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Member, Committee on the Judiciary..     4

                               WITNESSES

Robert Chesney, Charles I. Francis Professor of Law, University 
  of Texas School of Law, University of Texas School of Law, and 
  a Non-Resident Senior Fellow, The Brookings Institution
  Oral Testimony.................................................     6
  Joint Prepared Statement.......................................    10
Benjamin Wittes, Senior Fellow in Governance Studies and Research 
  Director in Public Law, The Brookings Institution
  Oral Testimony.................................................     8
  Joint Prepared Statement.......................................    10
Steven A. Engel, Partner, Dechert, LLP
  Oral Testimony.................................................    21
  Prepared Statement.............................................    24
Mary Ellen O'Connell, Robert and Marion Short Professor of Law, 
  University of Notre Dame Law School
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................    74

 
                       PROTECTING U.S. CITIZENS'
                         CONSTITUTIONAL RIGHTS
                        DURING THE WAR ON TERROR

                              ----------                              


                        WEDNESDAY, MAY 22, 2013

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 10:13 a.m., in room 
2141, Rayburn House Office Building, the Honorable Bob 
Goodlatte (Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Chabot, King, Franks, 
Gohmert, Poe, Farenthold, Conyers, Nadler, Scott, Lofgren, 
Jackson Lee, Johnson, Chu, Richmond, and DelBene.
    Staff Present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halataei, Parliamentarian & General Counsel; 
Jason Cervenak, Counsel; Kelsey Deterding, Clerk; (Minority) 
Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown, 
Parliamentarian; and Aaron Hiller, Counsel.
    Mr. Goodlatte. Good morning. The Judiciary Committee will 
come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time, and we welcome everyone 
to today's hearing on ``Protecting U.S. Citizens' 
Constitutional Rights During the War on Terror.''
    I will begin by recognizing myself for an opening statement 
and then the Ranking Member of the Committee. I want to welcome 
everyone to today's hearing on ``Protecting U.S. Citizens' 
Constitutional Rights During the War on Terror.'' On September 
18, 2001, Congress enacted the Authorization for the Use of 
Military Force, which empowered the President to use all 
necessary and appropriate force against those Nations, 
organizations or persons he determined, planned, authorized, 
committed or aided the terrorist attacks in order to prevent 
any future acts of international terrorism against the United 
States.
    Section 1021 of the fiscal year 2012 National Defense 
Authorization Act reaffirms the President's authority to detain 
so-called enemy combatants by affirming that the authority of 
the President to use all necessary and appropriate force, 
pursuant to the authorization for use of military force 
includes the authority for the Armed Forces of the United 
States to detain covered persons pending disposition under the 
law of war.
    The law defines ``covered person'' as either a person who 
planned, authorized, committed or aided the terrorist attacks 
that occurred on September 11, 2001, or harbored those 
responsible for those attacks, or a person who was a part of or 
substantially supported al-Qaeda, the Taliban or associated 
forces that are engaged in hostilities against the United 
States or its coalition partners, including any person who has 
committed a belligerent act or who has directly supported such 
hostilities in aid of such enemy forces.
    It defines disposition under the law of war to include 
first detention under the law of war without trial until the 
end of the hostilities; two, trial by military commission; 
three, trial by an alternative court or competent tribunal 
having lawful jurisdiction; and four, transfer of the custody 
or control of the person's country of origin, any other foreign 
country to the custody or control of the person's country of 
origin, any other foreign country or any other foreign entity.
    A number of Members from both sides of the aisle have 
expressed extreme discomfort and even outrage at the notion 
that a United States citizen apprehended on United States soil 
can potentially be held indefinitely under this act without 
receiving their full panoply of rights guaranteed under the 
constitution. I, for one, share this concern.
    I support making it clear that the United States citizens 
apprehended and detained in the United States, pursuant to the 
authorization for use of military force or the National Defense 
Authorization Act, should be transferred for trial in 
proceedings by a court established under Article III of the 
Constitution or by an appropriate State court and that such 
trial and proceedings have all the due process as provided for 
under the Constitution of the United States.
    I intend to explore avenues through this Committee to 
achieve a similar result. I am not persuaded by those who say 
that in practice this Administration and future Administrations 
will not exercise their authority to indefinitely detain United 
States citizens who have been apprehended in the United States. 
The mere notion that this authority exists is troubling in and 
of itself, and I believe that this body should make clear that 
citizens of this Nation cannot be detained without receiving 
all of their due process rights in an Article III court.
    In an attempt to address the concerns of those of us who 
are troubled by the indefinite detention authority under the 
AUMF, the Fiscal Year 2013 National Defense Authorization Act 
included language reaffirming the availability of the writ of 
habeas corpus for any person detained in the United States 
pursuant to the 2001 Authorization for Use of Military Force or 
the Fiscal Year 2012 National Defense Authorization Act. While 
this provision is a step in the right direction, it does not go 
far enough to ensure that Americans are receiving all the due 
process rights the constitution confers.
    For instance, the petitioner is placed at a disadvantage 
vis-a-vis the government when petitioning for is a writ of 
habeas corpus. Hearsay evidence is permissible against the 
detained individual and the government enjoys a rebuttable 
presumption that its evidence is accurate and authentic. So, 
essentially, a United States citizen has the burden of proving 
he or she is not an enemy combatant in order to escape 
indefinite detention, rather than the other way around, rather 
than the requirement that one be proven--that one be considered 
innocent until proven guilty. To most Americans, this would 
seem unfair.
    As we begin consideration of the fiscal year 2014 National 
Defense Authorization Act, it is my sincere hope that we can 
fully confront these important issues and finally put them 
behind us, keeping in mind that we should never sacrifice our 
freedom for our security. For if we do, as Ben Franklin 
correctly pointed out, we will not have either one. I look 
forward to hearing from today's witnesses, and now it is my 
pleasure to recognize the gentleman from Michigan, the Ranking 
Member of the Committee, Mr. Conyers, for his opening 
statement.
    Mr. Conyers. Thank you, Chairman Goodlatte.
    This is an important hearing, and while I will not cite you 
among the two people I am about to quote, namely James Madison 
and Justice Stevens, I do commend you for holding this hearing 
and opening us up for a very important discussion.
    Why Madison? Because he said, ``Of all the enemies to 
public liberty war is, perhaps, the most to be dreaded, . . . 
No Nation could preserve its freedom in the midst of continual 
warfare.''
    And of course, our beloved Supreme Court Justice John Paul 
Stevens wrote in Rumsfeld v. Padilla, ``If this nation is to 
remain true to the ideals symbolized by its flag, it must not 
wield the tools of tyrants even to resist an assault by the 
forces of tyranny.''
    And since September 11, 2001, it seems to me and others 
here that we have strayed from this wisdom, and this hearing is 
a welcome sign that we are beginning to try to find our way 
back. Three principles: One is Ex parte Milligan. If the 
civilian courts are open for business, we ought to use them to 
try civilians, and the Supreme Court, in 1866, explained laws 
and usages of war can never be applied to citizens in States 
which have upheld the authority of the government and where the 
courts are open and their processes unobstructed. That 
decision, Milligan, is applicable today as it was in the throes 
of the civil war.
    Since September 11, 2001, we convicted almost 500 
individuals of terrorism-related charges in civilian courts. 
Not one has ever escaped, and among the Federal district 
courts, 60 of them in 37 States have participated in these 
convictions. None has ever suffered retaliations or reprisal. 
The courts have not been a target.
    In short, no weapon in our counterterrorism arsenal is more 
effective than our civilian criminal courts. By adhering to 
Milligan, we both secure our Nation and give appropriate 
deference to the rule of law. Now, there may be limited 
exceptions to the Milligan rule, but they should be used 
sparingly and only when expressly permitted by Congress, and I 
am particularly concerned about the speed with which some would 
have us abandon this principle in the moments immediately 
following a national emergency.
    Example, in the aftermath of the Boston Marathon bombing, 
some of our colleagues urged the President to treat the 
surviving suspect as an enemy combatant rather than as a 
criminal defendant. That request was, to put it kindly, 
misguided. The enemy combat option, as those Members described 
it, is not even available in this case as a matter of law, for 
there is simply no evidence to support the claim that the 
suspect in the case is a covered person, as defined by the 
National Defense Authorization Act, who may be held 
indefinitely under the auspices of the 2001 Authorization for 
the Use of Military Force.
    Now, even if the combat option were available, it is not 
clear why we would want to choose it. The government has never 
successfully exercised that option for a United States citizen 
captured on United States' soil. Why would we risk an uncertain 
military commission on one hand for the full weight of the 
Federal judiciary on the other? Why risk a military commission 
that we altered, by the way, four times yet and still have it 
with certain flaws.
    I believe we should expand the scope of this discussion 
from the narrow topic of United States citizens captured on 
American soil to include others within the United States and 
even others abroad. It is well established that all persons in 
the custody of the United States, not merely citizens, may 
challenge their detention in a Federal court. The Supreme Court 
reiterated that principle with respect to the Guantanamo 
detainees in Boumediene v. Bush, and we should no longer 
entertain the legal fiction that the prison at Guantanamo Bay 
is somehow outside the jurisdiction of the United States. There 
are 166 persons there, 86 of whom have already been cleared for 
transfer. There is no compelling reason to hold these suspected 
terrorists indefinitely, their countries of origin 
notwithstanding.
    The means to bring them to justice, if warranted, is 
available to us at any time we have the courage to bring these 
persons to trial, and if we are to have a serious debate about 
how to make 13 years of indefinite detention in Guantanamo 
square with our values and our Constitution, then we ought to 
include everyone in our custody as part of this discussion.
    And so I join with the Chairman of this Committee in 
welcoming the witnesses, particularly our one witness, 
Professor O'Connell, and I yield back anytime I have.
    And if I have extended, I thank the Chairman for his 
courtesy.
    Mr. Goodlatte. We thank the Ranking Member for his 
comments.
    And the Chair was about to ask if other Members would agree 
to submit their opening statements.
    Mr. Nadler. If I could.
    Mr. Goodlatte. The gentlemen from New York has a brief 
statement he wants to make.
    Mr. Nadler. Yes, thank you.
    Mr. Goodlatte. Recognize for----
    Mr. Nadler. I just want to thank the Chairman for calling 
this very important hearing on this very crucial subject. I 
want to say that I find myself in general agreement with both 
the comments of the Ranking Member and of the Chairman, and I 
look forward to working with the Chairman and the Ranking 
Member on remedial legislation.
    I just want to say one thing, and that is, everything the 
Chairman said about American citizens in the United States I 
agree with. I think it also applies to noncitizens in the 
United States, since the Constitution makes no distinction with 
respect to the constitutional rights in the Bill of Rights on 
people in the United States, whether they be citizens or not.
    Having said that, again, I think this hearing is long 
overdue. We have to rein in perhaps the executive branch and 
make sure that when we are in a long-term war, war on terror, 
call it what you will, the executive, regardless of the war at 
least, following a 50-year Cold War, punctuated by some periods 
of hot wars, so it has been since 1945, almost a constant state 
of mobilization, so to speak. James Madison's words ring very, 
very true, and it is our job to try to make sure that our civil 
liberties survive intact.
    I thank you. I yield back.
    Mr. Goodlatte. I thank the gentleman.
    And we will now welcome our distinguished panel today.
    And if you would all rise, I'll begin by swearing you all 
in.
    [Witnesses sworn.]
    Mr. Goodlatte. Thank you very much.
    Let the record reflect that all the witnesses responded in 
the affirmative.
    Thank you, and I'll now introduce our distinguished panel.
    Our first witness is Professor Robert Chesney, the Charles 
I. Francis Professor in Law and associate dean for academic 
affairs at the University of Texas School of Law. Professor 
Chesney specializes in a broad range of issues regarding U.S. 
national security law, such as military detention, the role of 
the judiciary in national security affairs and terrorism 
related prosecutions. He is a nonresident senior fellow of the 
Brookings Institution as well as a team member of the Council 
on Foreign Relations. Previously, he served on President 
Obama's detention policy task force. Mr. Chesney earned his 
bachelor's degree in political science and psychology from 
Texas Christian University and subsequently graduated magna cum 
laude from Harvard Law School.
    We welcome his experience and expertise.
    Our second witness today is Mr. Benjamin Wittes, the senior 
fellow in governing studies at the Brookings Institution and 
codirector of the Harvard Law School Brookings Project on Law 
and Security. He's the author of ``Law and the Long War: A 
Future of Justice in the Age of Terror,'' published in June 
2008, and the editor of the 2009 Brookings book, ``Legislating 
the War on Terror: An Agenda for Reform.'' Mr. Wittes cofounded 
and is editor-in-chief of the Lawfare blog, a non-idealogical 
discussion of hard national security choices. Between 1997 and 
2006, he served as an editorial writer for the Washington Post, 
specializing in legal affairs. Mr. Wittes is also an alumnus of 
Oberlin College. We thank him for serving as a witness today 
and look forward to his insight into this complex topic
    Our third witness is Mr. Steven Engel, a partner at 
Dechert, LLP law firm. Previously, he clerked on the U.S. Court 
of Appeals for the Ninth Circuit for now Chief Judge Alex 
Kozinski and on the U.S. Supreme Court for Associate Justice 
Anthony M. Kennedy. Mr. Engel is a member of the Pro Bono Panel 
for the U.S. Court of Appeals for the Second Circuit, and he 
also served as deputy assistant attorney general for the United 
States Department of Justice's Office of Legal Counsel. Mr. 
Engel graduated with his bachelor's degree sum cum laude from 
Harvard and his JD from Yale Law School where he served as the 
essay editor of the Yale Law Journal. We are pleased to have 
him with us today.
    Our final witness is Professor Mary Ellen O'Connell from 
the University of Notre Dame, where she serves as the Robert 
and Marion Short Chair in Law and Research Professor of 
International Dispute Resolution at the Kroc Institute for 
International Peace studies. That's a long title.
    Ms. O'Connell. Very long title.
    Mr. Goodlatte. Previously she taught at the Ohio State 
University as the William Saxbe Designated Professor of Law at 
the Moritz College of Law, as well as a fellow of the Mershon 
Center for the Study of International Security and Public 
Policy. She has also taught courses on international law in 
Italy and Germany. Professor O'Connell graduated Phi Beta Kappa 
from the Northwestern University and received her JD from the 
Columbia University School of Law, where she won the Berger 
prize for international law. We are pleased to have her with us 
today.
    Thank you all for joining, and we will begin with Professor 
Chesney.

 TESTIMONY OF ROBERT CHESNEY, CHARLES I. FRANCIS PROFESSOR OF 
  LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW, UNIVERSITY OF TEXAS 
SCHOOL OF LAW, AND A NON-RESIDENT SENIOR FELLOW, THE BROOKINGS 
                          INSTITUTION

    Mr. Chesney. Thank you. Thank you, Chairman Goodlatte, 
Ranking Member Conyers, and Members of the Committee. My 
colleague, Ben Wittes and I prepared a joint written statement 
supporting a single recommendation. Specifically, we recommend 
that Congress codify what already has become the practical 
status quo with respect to military detention of persons 
captured in the United States; that is, Congress should put to 
rest the question at long last of the legality of such 
detentions, explicitly stating the detention authority under 
the AUMF and NDAA for fiscal 2012 does not extend to any person 
captured within the territory of the United States.
    In support of this view, I'll use my time to discuss the 
legal backdrop against which this question arises, and then the 
next witness, my colleague, Mr. Wittes, will discuss the 
practical and policy consideration that support our 
recommendation against the backdrop of those legal 
considerations.
    So, on the law, there are a handful of points that bear 
emphasis. First, we begin with the proposition that it is quite 
clear that when a U.S. citizen becomes a soldier in the Armed 
Forces of an enemy during war, that citizen is subject to 
detention just like any other enemy soldier, even if it's in 
the United States, as the Civil War emphasized and demonstrated 
to us on a grand scale. Supreme Court said as much in Ex parte 
Quirin during World War II, when it was confronted with at 
least two individuals amongst a group of German military 
personnel who had come into the United States as saboteurs. And 
in Ex parte Quirin, the Court said their citizenship doesn't 
relieve them of the consequences of their belligerency.
    That's not the only relevant consideration, however. Quirin 
is just one pole in this debate. The other pole, as was 
mentioned by Ranking Member Conyers a moment, Ex parte 
Milligan, a Civil War era case in which the government 
confronted what we might today describe as a sleeper cell, a 
clandestine group of individuals who were plotting to carry out 
an attack on a military installation, In that case, an Indiana 
POW camp where Confederate soldiers were held. These men were 
plotting to seize weapons, attack the Union forces there, free 
the Confederate forces and further the cause of the 
Confederacy. The thing was, they were not themselves 
Confederate military personnel. And the Supreme Court in 1866 
in a landmark decision held that where persons are not members 
of the military force of the enemy and where the civilian 
courts are otherwise open, in such circumstances, military 
authority was not appropriate.
    Now, for some, post-9/11 events that we grapple with look a 
lot like Ex parte Quirin; for others, they look a lot like Ex 
parte Milligan. The problem, of course, is that in many, if not 
most, of these instances, they partake of both those decisions, 
and they have elements that pull in both directions. 
Complicating matters further, since World War II in the Quirin 
decision, we've had a statutory development, the adoption in 
the early 1970's of the Non-Detention Act. The Non-Detention 
act, in brief, states that detention of citizens must be 
pursuant to statute, thus raising forever after, as long as 
that's on the books, the question of whether any given 
authorization for force or declaration of war is explicitly 
clear enough to justify citizen detention, even if detention 
would otherwise be lawful in light of Milligan and Quirin.
    So, that's the backdrop that the courts have had to 
struggle with in the post-9/11 period in the handful of 
instances in which citizens or persons captured in the United 
States have come into military custody. It's important to 
realize there have only been three such instances, if we set 
aside the John Walker Lindh example, and maybe that's a brief 
fourth one.
    The first major instance to come to head was the Hamdi 
case. Now, Hamdi was captured on the battlefield in 
Afghanistan. He was very analogous to a more conventional 
scenario where the person allegedly was a member of the armed 
forces of the enemy in a war zone, and the Supreme Court made 
clear that in those circumstances, if the factual claims 
against him were true, there is detention authority.
    The cases that are of more interest today are the cases of 
Jose Padilla and Ali al-Marri; Jose Padilla, an American 
citizen; al-Marri, not a citizen but lawfully present in the 
United States when he was captured, both captured here, both 
alleged al-Qaeda sleeper cell members.
    Suffice to say that the courts splintered widely and wildly 
as to the legality of their detention. In Padilla's case, it 
never reached a merits decision by a majority of the supreme 
court, and yet we can count heads and say that there was in 
fact a majority to say no in his case, most likely on the 
grounds of the Non-Detention Act. We can say that because when 
his case did reach the court, there was a brief--there was a 
ruling on procedure that the majority focused on, but there 
were four dissenters who focused on the merits. One other 
member of the Court, Justice Scalia, made clear in another 
case, the Hamdi case, that he was hostile to the position of 
citizen detention as well. Counting heads, it was fairly clear 
the government would lose on the merits, which is the most 
likely reason why the government ultimately transferred him to 
civilian custody.
    Now, my time has expired, so I will stop here and let my 
colleague, Mr. Wittes, continue with the policy implications of 
this uncertainty.
                              ----------                              


    Mr. Goodlatte. Mr. Wittes, welcome.

   TESTIMONY OF BENJAMIN WITTES, SENIOR FELLOW IN GOVERNANCE 
  STUDIES AND RESEARCH DIRECTOR IN PUBLIC LAW, THE BROOKINGS 
                          INSTITUTION

    Mr. Wittes. Thank you, Chairman Goodlatte, Ranking Member 
Conyers and Member of the Committee.
    I want to pick up right where Professor Chesney left off 
and discuss briefly our single recommendation that as he said, 
Congress should put to rest the uncertainty he described over 
domestic military detention by clarifying that neither the AUMF 
nor the NDAA 2012 should be read to confer detention authority 
over persons captured within the United States, whether 
citizens or not.
    The benefits of keeping the military detention option open 
are slim and hypothetical while the offsetting costs are 
substantial, in our view. The executive branch, let me start by 
saying, has no interest in using detention authority 
domestically, contrary to a lot of the popular mythology. The 
Bush Administration actually had little appetite for military 
detention in such cases all along.
    The experiments that Professor Chesney refers to of 
detention with Padilla and al-Marri did very little to 
encourage a different course, given the legal uncertainties the 
cases exposed, and that uncertainty has in turn created an 
enormous disincentive for any Administration of whatever 
political stripe to attempt this sort of detention again.
    So, a de facto policy developed in favor of using the 
criminal justice apparatus whenever humanly possible for 
terrorist suspects apprehended in the United States. While 
military detention has remained potentially available as a 
theoretical matter, therefore, it is not functionally available 
for two simple reasons: First, because executive branch lawyers 
are not adequately confident that the Supreme Court would 
affirm its legality; and secondly, because the executive has a 
far more reliable alternative in the criminal justice 
apparatus.
    The Obama Administration later made this unstated policy 
official, announcing publicly that it would use the criminal 
justice system exclusively both for domestic captures and for 
citizens captured anywhere in the world.
    But ironically, even as this strong bipartisan executive 
norm against military detention of domestic captures developed, 
a fierce commitment to this type of detention has also 
developed in some quarters. The fact that the norm against 
detention is not currently written into law has helped fuel 
this commitment, enabling the persistent perception that there 
is greater policy latitude than functionally exists. The result 
is that every time a major terrorist suspect has been taken 
into custody domestically in recent years, the country explodes 
in the exact same unproductive and divisive political debate.
    In other words, there's a big gulf between the real 
functional state of play in which the criminal justice system 
provides the exclusive means of processing terrorist suspects 
captured within the United States and the perception in some 
quarters that military detention remains a viable option, 
perhaps even a norm for domestic terrorist captures, and that 
gulf has real costs.
    Closing off the possibility of the executive branch's 
trying such detention again in the future is not without 
potential cost of its own. It is certainly possible that we 
will one day again confront a case like that of Jose Padilla, 
which was a very scary case, in which strong evidence exists 
that an individual member of an AUMF covered group poses a huge 
threat within the United States but in which the evidence 
supporting this view is either too sensitive to disclose or 
inadmissible, and in such a situation, flexibility would be a 
real virtue.
    But we believe that situation is far less likely to develop 
today than it was when the Bush Administration conduct--
confronted the Padilla case in 2002. To put it bluntly, we're a 
lot better at these cases now than we were then. And aside from 
a Padilla-like scenario, a ban on military detention for 
domestic captures would foreclose no course of action that is 
realistically available to the executive branch now, given its 
own preferences and prudential judgments. It would, rather, 
merely codify the existing understanding reflected in executive 
branch policy and practice, policy and practice that has been 
reinforced over the years by well-informed expectations about 
the likely views of the justices on the underlying legal 
questions.
    In other words, the costs of the legal uncertainty and 
political friction overhanging the domestic military detention 
option simply outweigh any hypothetical benefits of continuing 
to leave that option open as a statutory matter, and we, 
therefore, favor legislation that would clarify that military 
detention in counterterrorism under the AUMF is not available 
with respect to any persons arrested within the United States.
    We look forward to answering your questions. Thank you.
    Mr. Goodlatte. Thank you, Mr. Wittes.
    [The joint prepared statement of Mr. Chesney and Mr. Wittes 
follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                               __________

    Mr. Engel, welcome.

      TESTIMONY OF STEVEN A. ENGEL, PARTNER, DECHERT, LLP

    Mr. Engel. Thank you. Chairman Goodlatte, Ranking Member 
Conyers and Members of the Committee----
    Mr. Goodlatte. If you want to pull that microphone closer 
and be sure it is turned on.
    Mr. Engel. No, I have a better light. Thank you, Mr. 
Chairman, and thank the Members of the Committee for the 
opportunity to appear here today.
    For more than 10 years, the United States has been engaged 
in an armed conflict against al-Qaeda, the Taliban and 
associated forces. That conflict, while centered outside our 
borders, has not been limited to external threats. To the 
contrary, on September 11, al-Qaeda proved that it had the 
military capability to inflict an attack on our homeland as 
devastating as anything we had experienced before. The war on 
terror presents special issues when it comes to the rights 
secured to U.S.--United States citizens. With the nature of the 
enemy less defined and the enemy set on attacking on our 
homeland, the war on terror requires that the government work 
to detect and stop terrorist plots at home.
    The means by which we seek to stop such threats and the 
rights of those, including American citizens detained on our 
soil, pose special challenges to ensure that we protect the 
constitutional rights of Americans at the same time as we 
protect their lives. Indeed, the topic of today's hearing is 
hardly theoretical.
    Just 1 month ago, we saw that the domestic threat posed by 
al-Qaeda and its idealogical allies remains very real. On April 
15, 2013, two American citizens committed a terrorist attack in 
Boston that claimed the lives of three people and seriously 
injured hundreds more. In the manhunt that followed, those same 
individuals murdered a police officer, they critically injured 
another and apparently were planning to commit another 
terrorist attack had they not been stopped. The City of Boston, 
as we all know, was shut down for nearly 2 days.
    The Boston Marathon attack makes the topic of today's 
hearing quite timely. The apprehension of the second bomber, 
Dzohkar Tsarnaev, raised questions about whether he should have 
been detained by civilian law enforcement or transferred to 
military custody. It also raised questions about what rights 
Mr. Tsarnaev had while in police custody, including whether and 
when he should have received Miranda warnings.
    Let me say a word here with respect to Mr. Tsarnaev's 
detention. The Supreme Court has made clear that a U.S. citizen 
who joins up with a foreign enemy may be detained in military 
custody. In the war on terror, the Supreme Court specifically 
upheld the military detention of a U.S. citizen captured in 
Afghanistan. During World War II, the court held that an 
American citizen arrested within our borders likewise could be 
held and prosecuted in military custody. The fact that an enemy 
combatant could also be prosecuted in the civilian justice 
system is not a legal reason why he may not also be subject to 
military detention.
    Of course, as the Chairman noted, that citizen would have a 
full right to the writ of habeas corpus, which is the 
fundamental bulwark against arbitrary detention. Now, whether 
Mr. Tsarnaev was in fact an enemy combatant, of course, is a 
separate question. Based on the publicly available information, 
there is certainly reason to doubt that Mr. Tsarnaev had joined 
an enemy force as opposed simply to have taken inspiration from 
al-Qaeda and its idealogical adherence. While Mr. Tsarnaev thus 
may appropriately have been treated as a criminal suspect, the 
Boston marathon case is instructive because the facts will not 
have to change very much to lead to a very different 
conclusion. If like the German saboteurs in World War II, Mr. 
Tsarnaev had trained with the enemy and returned to our country 
to commit a terrorist act of war, then the President could well 
have ordered and held in military custody. With a few 
additional facts, such determination might also appear wise. 
What if Mr. Tsarnaev was part of a larger terrorist cell whose 
members remained at large? What if Mr. Tsarnaev knew of the 
next plot, but the government needed the time to interrogate 
him before providing him with a lawyer? And what if government 
did not want to publicly disclose to our enemies the 
intelligence that they had relied upon in support of arresting 
him? Under those circumstances, the President might well 
determine that it is both lawful and necessary to transfer a 
terrorist to military custody.
    And again, if you believe that the September 11th attacks 
were an act of war, it is a remarkable position to think that 
if the hijackers were caught on the morning of September 11th, 
they could not be treated as enemy combatants and held in 
military custody.
    Now, in fighting the war on terror and in protecting our 
citizens, the United States must have the flexibility to use 
all of the tools at its disposal, including both its military 
and civilian capabilities. We have been successful over the 
past 10 years precisely because we have recognized that the war 
on terror is a problem that required both. We would serve 
neither the Constitution nor our national security well if we 
were to limit the lawful means at the President's disposal in 
combatting these threats.
    Thank you, Chairman Goodlatte and Ranking Member Conyers, 
for the opportunity to appear here today. Ensuring that the 
government has struck the appropriate balance between liberty 
and security is certainly a matter worthy of this Committee's 
attention, and I look forward to your questions.
    Mr. Goodlatte. Thank you, Mr. Engel.
    [The prepared statement of Mr. Engel follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




                               __________
    Mr. Goodlatte. Ms. O'Connell.
    Ms. O'Connell. Thank you, Chairman Goodlatte, Ranking 
Member Conyers.

  TESTIMONY OF MARY ELLEN O'CONNELL, ROBERT AND MARION SHORT 
     PROFESSOR OF LAW, UNIVERSITY OF NOTRE DAME LAW SCHOOL

    Mr. Goodlatte. You may want to press that button on your 
phone--on your speaker there.
    Ms. O'Connell. You'd think a professor could learn the 
lesson you just taught my colleague.
    Anyway, Chairman Goodlatte and Ranking Member Conyers and 
Members of the Committee, thank you sincerely for this 
invitation to testify today on this critical issue of basic 
rights during armed conflict.
    I have been a student of this very topic since the 1981-
1982 academic year in Cambridge, England, where I was a student 
earning my LLB in international law. I studied under the great 
judge, Sir Christopher of Greenwood, truly one of the leading 
experts on this topic, and I went on to spend the next 30 years 
studying exactly what the law of armed conflict requires and 
when it applies.
    It is true, as we have just heard, that the extraordinary 
situation of real armed conflict hostilities does change the 
rights to which people are entitled. Most importantly, with 
respect to our very lives, to our liberty and to the process 
which we are owed. These rights change according to the law of 
armed conflict, but the law of armed conflict also severely 
limits the situations in which these changes apply. The law of 
armed conflict applies in armed conflict, and the law, of 
course, has a definition of what counts as armed conflict so 
that we know when it is appropriate to shift these fundamental 
rights.
    The definition is a commonsense understanding that works 
very well in our system of nation states, which is only loosely 
organized and really depends on open and obvious rules that all 
can see and can mutually re-enforce within the community of 
states.
    So the definition of armed conflict within international 
law relies on two fundamental fact situations: There must be 
the presence of organized armed groups, and those armed groups 
must be engaged in situations of real fighting, of intense 
armed fighting. These facts are plain to see and they are plain 
to see with respect to Afghanistan today. That is where our 
serving men and women are actually engaged in encounters with 
armed insurgents seeking to overthrow President Karzai. In 
Afghanistan, our forces may kill enemy fighters without first 
attempting to detain them. Our soldiers may arrest or detain 
persons until the end of the hostilities in Afghanistan, and 
those persons may be held without trial. If they are accused of 
a crime, they may be put before military commissions.
    But ladies and gentlemen, the hostilities in Afghanistan 
for the United States will come to an end in 2014, and it is at 
that time that our right to pursue these particular privileges 
of armed conflict will also come to an end. How ironic, 
therefore, that certain people believe that these very rights 
apply within the United States and may even apply beyond 2014, 
and yet we see in the United States the serious contrast with 
the situation in Afghanistan.
    We are not experiencing intense armed fighting on our 
streets among organized armed groups. No, we are experiencing 
something else that is also extremely challenging. We see, on 
our streets and in our cities, the challenge of terrorism, 
whether of the Timothy McVeigh and Tsarnaev brothers type or of 
the Richard Reid and Abdulmutallab type, but FBI, local police, 
Federal and State prosecutors, Article III and State courts are 
as a matter of law and practice the right bodies to respond to 
this ongoing threat.
    I see in Professor Chesney's and Mr. Wittes' proposal and 
the in the comments of Mr. Engel a movement generally away from 
this wartime attempt or this attempt to pursue the privileges 
of armed conflict on the territory of the United States. We see 
this in other indications as well.
    Today's New York Times reports that drone strikes outside 
of armed conflict zones are declining dramatically. We are also 
seeing no further prisoners being sent to Guantanamo. The vast 
amount of trials against terror suspects, 200-plus trials, have 
been in the United States in regular courts since 9/11. Indeed, 
the very first asserted wartime privilege after 9/11 to come to 
an end came to an end already in 2003, and that, Mr. Chairman, 
was the attempt to do search and seizure of cargo ships on the 
high seas. Yes, during wartime, such search and seizure may 
continue, but not in peacetime, and the U.S. gave that up in 
2003, persuaded by our closest ally in so many of these 
situations, the United Kingdom.
    In conclusion, I would emphasize that the United Kingdom 
and our other close allies have never accepted this global war 
on terror. We need to get right on the law so that we can again 
have the close cooperation with these allies. That's how we 
will overcome terrorism in the world today. Thank you.
    Mr. Goodlatte. Well, thank you, Ms. O'Connell.
    [The prepared statement of Ms. O'Connell follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




                               __________
    Mr. Goodlatte. And I want to thank all of you for excellent 
testimony and raising several thought provoking issues here.
    I will say in recognition of the remarks of the Ranking 
Member and the gentleman from New York that I am very 
interested in this subject of to whom we should be guaranteeing 
constitutional rights, protections under our Bill of Rights. 
I'm glad we all agree that relates to United States citizens. I 
also would say that we might be closer together on the issue of 
permanent--lawful permanent residents in the United States.
    I would have to also say, however, that Mr. Engel makes a 
valid point with regard to the issue of incursions by people 
either illegally entering the United States as agents of al-
Qaeda to exercise a military-like terrorist attack or even 
lawfully entering on a temporary basis for the purpose of doing 
that, similar to the original 9/11 hijackers and the cause of 
that tragedy.
    And therefore, even though Ms. O'Connell makes a very good 
point that we are now more than 12 years after that attack, I 
share that concern.
    So, obviously, one of the issues that is probably beyond 
the scope of this hearing is, do we need a new authorization 
for use of military force? That would make an excellent 
discussion in its own right and some Members may choose to ask 
questions related to that.
    And also, if time permits, I'll come back to talk about, 
with the witnesses, about the issue related to how wide this 
scope should be. But I do believe that, under certain 
circumstances, people who are not citizens of the United States 
would not enjoy these same types of constitutional protections, 
certainly not the full extent of them, in virtually any other 
country in the world because no country has as strong of 
protections for civil liberties as we have in this country. I 
would be concerned about a blanket provision for anybody 
apprehended in the United States, regardless of their status in 
the country.
    But I'd like to use my time now to focus on the issue that 
some of you raised with regard to the Boston Marathon bombing 
and particularly with the arrest of Dzohkar Tsarnaev, who, 
unlike his brother, was a naturalized United States citizen and 
was treated by the Administration through the Article III court 
system. I think that was the correct decision, but it also 
raised a problem that we see with the collision of two or three 
different Supreme Court decisions; one, obviously, the Miranda 
decision, providing for advising criminal suspects of their 
right to certain things, including counsel; secondly, decision 
of the courts that requires presentment of the charges within 
48 hours; and thirdly, a decision that says that there are 
exigent circumstances under which the individual can be 
questioned by the FBI or other law enforcement in order to 
determine some of the emergency type things that Mr. Engel 
identified in his testimony, namely, are there other 
participants in the conspiracy? Are there other targets that 
are imminent? Are there other bombs out there to be located? 
And obviously, that process was ongoing. The FBI was 
questioning the individual without his Miranda warnings prior 
to the presentment, and then we had a situation develop where 
the judge, magistrate judge showed up. He was given not only 
the presentment of the charges but also his Miranda warnings 
and received an attorney and that questioning was cut off, and 
it may have been cut off prematurely, as they were gathering 
valuable information.
    So, let me ask each of you, as time allows here, what 
options does the Federal Government have to gather intelligence 
for a period of time before issuing a Miranda warning? Are 
those options sufficient enough to strike the appropriate 
balance between keeping us safe and ensuring that our 
constitutional rights are preserved? And what other options 
should we be exploring to help achieve that important balance?
    Some have suggested, including myself, that we may need to 
have a statutory definition of under what circumstances and 
what narrowed scope of questioning can occur after the 
presentment but before the Miranda warning reading that would 
allow for a reasonable period of time for law enforcement to 
ask the necessary questions to make sure there is not something 
imminent that is a danger to all.
    So we'll start with you, Mr. Chesney, and you can address 
that general subject matter of, what went right or what went 
wrong with the questioning of Mr. Tsarnaev and what should we 
do about it?
    Mr. Chesney. Thank you, Mr. Chairman.
    Incredibly important topic. We started off there on the 
right foot when the High-Value Interrogation Group, or the HIG, 
as it is known, was brought in. These are the people that you 
want interrogating someone in that situation, and that 
illustrates that you didn't need it to be military detention in 
order for them to be involved in that interrogation. The 
problem arose after, I believe, about 16 hours' worth of 
interrogation by the HIG had been accomplished, when, at that 
point, there was presentment with the magistrate, but more 
important than that, the Federal public defender assigned to 
represent Tsarnaev was present.
    Now, I don't claim to have any knowledge of what the lawyer 
may have said to him. We can assume, Tsarnaev, though not prior 
to that point, read his rights, having essentially grown up in 
the United States, understood that he had a right to remain 
silent. He didn't need to be--none of us, for the most part, 
when you grow up in the United States, need to be read your 
rights to know that that's there.
    What really matters, I think, is when defense counsel sits 
down for a moment and says, listen, you should stop talking 
because a plea agreement is probably the best route out of 
here, and you should be silent because you need to save your 
comments for leverage.
    Now, at that point, the government has a choice. It could, 
as it did, as I understand it, stop interrogating the person 
because he then says, all right, I don't want to talk anymore, 
and you could let that go and you can send the HIG on its way. 
That, I think, is where a mistake may have been made. I don't 
think that the government has to stop at that point. It can, 
and I think in a circumstance like this, should continue with 
the HIG right there, continuing to talk to the person. He may 
say he doesn't want to answer questions, and he may give the 
silent treatment in response, but the interrogation should 
continue nonetheless.
    It may be that there's space for a statute here that would 
clarify that this is--I think it is a proper action by the 
executive branch. It may have consequences for the 
admissibility of the resulting statements, but in a case like 
Tsarnaev's, that's not really central. That's not the most 
important thing. A statute might help there.
    Mr. Goodlatte. Mr. Wittes.
    Mr. Wittes. I don't have a lot to add to that. I will say 
that, well, one of the consequences when people have rights is 
that sometimes they will invoke them, and you know, there is 
ultimately no way around that reality, and you know, the rights 
we have do have consequences and sometimes that consequences 
will include intelligence loss.
    I do think, if you read the Quarles opinion, which is you 
know, about a mundane street crime and the location of a gun, 
the idea that Congress could come in and say what public safety 
means in the context of a high-value interrogation of a major 
terrorist figure is not altogether implausible and that 
Congress could add some texture and add some flexibility.
    Mr. Goodlatte. ``Not altogether implausible'' is not a big 
endorsement of the idea either.
    Mr. Wittes. Well, I mean, you know, there's a Supreme Court 
opinion that addresses this point and that does impose 
constraints.
    Mr. Goodlatte. But there is another Supreme Court decision 
that seemed to collide with it.
    Mr. Wittes. Well, so--I mean, I think Congress has more 
latitude in the presentment area where, you know, County of 
Riverside creates a presumption on 48 hours, and I think 
Congress could probably craft a legislation--a piece of 
legislation that would, you know, create latitude to delay 
presentment in these cases with an appropriate certification by 
the Attorney General.
    In other words, I think there are things that Congress 
could do to add flexibility to that situation, but at the end 
of the day, you are dealing with people's constitutional 
rights, and sometimes if people have the right to remain 
silent, they're going to remain silent.
    Mr. Goodlatte. Right. And we certainly respect that.
    On the other hand, in the example given, for some of the 
time that he was held prior to presentment, he was unconscious. 
There was questioning that went on. That questioning seemed to 
actually yield quite a bit of fruitful information with regard 
to what was intended. As it turns out, nobody had the ability 
to carry it out because I don't--we so far haven't identified 
other people who were involved in trying to carry it out, but 
adding one or two more ingredients to that, what information he 
gave was useful information and could have yielded some real 
lifesaving information if it had been allowed to carry on and 
there was that additional component.
    Mr. Wittes. I think that's right. I think there's--look, I 
think it is an area where in a series of very important 
arrests, there has been, you know, a tension between the desire 
to, you know, comply with the rules of the criminal justice 
system and that exigent need to get information as quickly as 
you can, and I think there is--this is an area where Congress 
could probably give the Administration a little bit of 
breathing space or the FBI a little bit of breathing space. How 
much is less clear.
    Mr. Goodlatte. Mr. Engel.
    Mr. Engel. Thank you, Mr. Chairman. I think we've 
identified here a real issue in which there are costs to a 
proposal that requires Mr. Tsarnaev or others--not Mr. 
Tsarnaev, but others who would qualify to remain in the 
civilian justice system. We can talk about how one could tweak 
the fundamental circumstances in which the FBI and Department 
of Justice found themselves with respect to Mr. Tsarnaev. And 
again, I'm not saying that he could have, under these facts, 
been put into military custody. But the reason that Jose 
Padilla was put into military custody was specifically for 
purposes of detention and for creating a scenario in which he 
did not have to have an attorney at his side in very short 
order.
    So, you know, what we are--to the extent as I believe and 
as I believe precedent confirms, not predictions of vote 
counting, you know, or the like, but precedent confirms that 
enemy combatants, including American citizens, may be held in 
military custody, maintaining that has an option for 
extraordinary circumstances where lifesaving intelligence is 
available is a prudent course rather than suggesting that we 
want a blanket rule that would take that option off of the 
table.
    Mr. Goodlatte. Not to prolong this because I way exceeded 
my time and I do want to give Ms. O'Connell and opportunity to 
speak, but the problem with that is that we have many types of 
terrorist attacks that are not going to take place without an 
authorization for use of military force, and without that AUMF, 
the President would have no authority to do that with regard to 
a United States citizen. So, for example, the Timothy McVeigh 
bombing in Oklahoma City, for example, we would not think of 
saying that a particular type of crime perpetrated by the 
United States citizen in the United States, a suspect of that 
could be held in one circumstance indefinitely and not in 
another, so it that really narrows that down to the AUMF. And 
here 12 years after 9/11, as we have left Iraq and are reducing 
our presence in Afghanistan, it is harder and harder to defend 
that deprivation of rights to U.S. citizens.
    So, I definitely understand your concern, but I think the 
exception to ask those questions, because they are important 
questions and could be lifesaving questions, needs to be 
narrower than to say that a certain type of person can be held 
indefinitely for questioning.
    Ms. O'Connell.
    Ms. O'Connell. Mr. Chairman--Mr. Chairman, my husband was a 
military interrogator for 11 years, and so I'm very well 
informed about the difference between FBI interrogations, 
civilian interrogation and military interrogation, and sad to 
say, I think this issue has just been overblown and 
misunderstood by people.
    Excellent FBI interrogators, as I think Professor Chesney 
indicated, can do an extremely good job, just as good as 
military interrogators, within civilian system. It is--I'm not 
quite sure how we've gotten on this wrong track, but remember 
when Abdulmutallab was arrested in Detroit, he was interrogated 
by excellent interrogators who had the training, the skills, 
the background knowledge, the language, et cetera, to get a 
great deal of information about the motivations, the 
connections, et cetera of Mr. Abdulmutallab. So, instead of 
focussing on, well, shouldn't we do this experimental thing and 
for people arrested within the United States, where there is no 
ongoing armed conflict, into the military system, let's focus 
on doing the best we can to make sure that our civilian law 
enforcement authorities have the skills and access that they 
need to have.
    And in this case, with Mr. Tsarnaev, I really think we 
should be looking at what happened before the Boston bombing. 
Why didn't the FBI have good contacts with Russia so that we 
had better information about these individuals before the 
tragedy? And that's where I think we should be focussing. 
Sadly, I believe we've been distracted by thinking about 
Guantanamo Bay and military custody and so forth. We've taken 
our eyes off the prize of really doing what will succeed in 
preventing these kinds of tragedies, and that's good 
international police cooperation with the best people, best 
skills, knowledge, language, et cetera
    Mr. Goodlatte. Thank you very much. My time is way past 
expired.
    The Chair now recognizes the gentleman from Michigan. 
Before I do, I'll have to step out for awhile, but I do hope to 
return to the hearing, and I recognize Mr. Conyers for his 
questions.
    Mr. Conyers. Thank you. If I could have given you more 
time, I was--would have been happy to do it.
    This is a very interesting panel. And I am going to make a 
broad series of assertions and ask all of you to comment on it. 
One is that the global war on terror implies war without end, a 
concept that, as you can guess, I vigorously oppose. And then 
we have coming up the National Defense Authorization Act very 
soon in the Congress. And our colleague, the Ranking Member, 
Adam Smith, will be offering again his amendment to prohibit 
indefinite detention for anyone captured in the United States, 
even noncitizens, a measure I supported and perhaps a majority 
of my colleagues on this Committee may not have supported.
    And so it seems to me that we're considering the analysis 
to prevent the government from treating all persons captured on 
U.S. soil as enemy combatants, regardless of their citizenship. 
And so and so trying to remember Madison and Justice Stevens, 
and the whole concept of fairness in matters that bleed into 
war, I'd like to get your views on these several subjects. And 
I'm going to start with the lady professor on the panel first.
    Ms. O'Connell. Well, Mr. Conyers, I agree with every 
comment that you just made. Let me focus on the first point, 
indefinite detention. As I mentioned in my comments, the armed 
conflict hostilities in Afghanistan will come to an end for the 
United States in 2014. We will no longer be holding persons who 
are fighting in those hostilities in Afghanistan after that 
point. And yet we will still have people at Guantanamo Bay 
arrested in those hostilities, but, even more alarmingly, 
persons not detained in those hostilities, without any 
understanding about when they may be released; no trial, et 
cetera. The law of armed conflict does not permit that. 
Persons----
    Mr. Conyers. There's 166 of them now, 86 of whom are 
cleared for transfer already but prevented by congressional 
mandate.
    Ms. O'Connell. So the only law that can justify these 
ongoing detentions is law that has been cooked up, not law that 
has come through any type of appropriate process. We have the 
law of armed conflict that is binding on the United States as 
party to the Geneva Conventions. We have our own constitutional 
law, which plainly has limits on detention, according to law. 
The Hamdan case told our President that we have to be acting 
consistently with the Geneva Conventions in our detention 
processes of people in military detention. After the end 
hostilities in 2014 in Afghanistan, there won't even be a shred 
of reason under the law to hold any of the detainees at 
Guantanamo Bay.
    Mr. Conyers. Thank you so much.
    Let me now switch to Mr. Chesney, and let's see where he 
goes from this discussion.
    Mr. Chesney. Thank you, Ranking Member Conyers.
    I'll take those in reverse order. I'm going to start with 
the noncitizens question. I do agree, as I said, before that we 
should not draw distinction here between the citizens and the 
noncitizens captured within the United States, a few reasons 
for that. One is, I'll begin with the idea that part of why we 
would want to resist as a general proposition military 
detention for domestic captures is a deep tradition of not 
having the military be in the lead when it comes to domestic 
security when that can be avoided. There are some 
circumstances, obviously, the Civil War and a few other 
examples, where that's not the case. But, generally speaking, 
we have this tradition.
    Insofar as having a lead role for military detention when 
some terrorists may be captured within the United States is 
possible, well, that is going to have consequences for other 
things the military may need to do to be prepared to execute of 
role. And they will be in that position and incentivized to 
take on certain activities as long as they've got some lead 
role. And if noncitizens are that lead roll, there you have it.
    Secondly, when we distinguish between citizens and 
noncitizens, it's alarming to our allies. Now, here I'm not 
talking about international law professors, people who do what 
I do in other countries, and so forth; I'm talking about the 
security officials in the U.K. and elsewhere who become greatly 
alarmed and have difficulty and more friction in their 
cooperation with us insofar as we claim authorities that are 
differential between our citizens and theirs. It's not a 
dispositive point, but it's a consideration that has security 
implications.
    Most importantly, the legal uncertainty that I described 
and the policy considerations that my colleague Mr. Wittes 
described, they are applicable on the citizens and the 
noncitizens capture fronts. Now, the legal uncertainty is less 
dramatic with respect to noncitizen captures, but if I'd had 
time, I would have explained how greatly divided the courts 
were in the case of Ali al-Marri, who was your prototypical 
noncitizen al-Qaeda sleeper agent. The courts were very torn up 
about that.
    So why don't I stop there and just say one quick thing, 
which is that I don't agree that the armed conflict with al-
Qaeda ends when we leave Afghanistan in terms of an overt, big-
footprint deployment. We've made clear in the papers and 
elsewhere, we're going to continue to exercise force in support 
of counterinsurgency and other and other efforts and 
counterterrorism in Afghanistan beyond 2014. That doesn't make 
it an endless war. It's a war with defined enemies; it's not a 
war with terrorism, as the Administration for both parties have 
is said in the past. It's a conflict with al-Qaeda and its 
associated forces.
    Mr. Conyers. Yes, sir.
    Mr. Wittes, the Chair has permitted me to have both of you 
make responses to the same question.
    Mr. Wittes. I'll just add very briefly to what Professor 
Chesney said. I mean, the same operational improvements that 
have enabled us over the last 10-plus years not to have another 
Padilla case have also enabled us not to have another al-Marri 
case. And so, you know, in addition to the philosophical and 
legal and diplomatic reasons not to distinguish between 
citizens and noncitizens here, there is also the fact that, you 
know, when I said in my prepared statement, that we had just 
gotten a lot better at these cases, and we're really not 
creating situations anymore in which it is necessary to move 
people out of the criminal justice system and into military 
detention, that claim applies with equal force to citizens and 
noncitizens.
    A brief word on the global war on terrorism. You know, I 
think if you--the Administration does not use language like the 
``global war on terrorism.'' It talks about the NDAA. And the 
last Administration in its latter years was very careful about 
this as well. It talks about a war against al-Qaeda, the 
Taliban, and associated forces. And I think that when you frame 
it that way, it is not implausible to think to imagine the end 
of a conflict in--at--you know, and Jay Johnson, the then 
General Counsel of the Defense Department actually gave a 
speech at the Oxford Union back in December, in which he sort 
of talked very explicitly about what the end of conflict will 
look like. So I actually don't agree that the global war on 
terror, to use your words, reflects a war without end. I think 
it is possible to imagine an end.
    Mr. Conyers. Your comments, sir.
    Mr. Engel. Thank you.
    Mr. Conyers. The Chair has permitted me to finish this up.
    Mr. Engel. I would just be brief. I think I have 
significant agreement with Mr. Wittes and Professor Chesney. I 
think the ``global war on terror'' is a phrase which has had 
uses; it's had detriments. But it refers to a specific armed 
conflict against specific enemies, against whom we've made much 
headway; on the other hand, against whom we continue to engage 
in military operations in Afghanistan and Pakistan and, you 
know, throughout the Middle East and the Horn of Africa.
    It is possible to imagine a situation in which it would be 
safe for our country to, you know, release some of the folks at 
Guantanamo Bay. On the other hand, we're not there yet. And 
there's not necessarily a correlation between the end of major 
combat operations in Afghanistan and the end to the 
hostilities. But we will talk about that and the lawyers talk 
about that when we get to these positions, of course.
    Mr. Conyers. Thank you.
    Could I just ask, Professor O'Connell, was shaking her head 
vigorously. I don't know what Mr. Chesney said that set her 
off. But could you briefly explain this before my time is 
taken.
    Ms. O'Connell. Well, Professor Chesney started out well 
when he said that the armed conflict would end in Afghanistan 
in 2014. But then he slipped further and said something about 
there being an armed conflict against al-Qaeda, the Taliban, 
and associated forces. And Mr. Engel just said that now. It's 
important for the Committee to understand that this is a very 
internal-to-the-U.S. view; that out in the world where we're 
actually operating with drones and with detention, et cetera, 
there may be only one other sovereign state that agrees with 
this position. That's not a good place to be if you need 
cooperation with respect to these kinds of armed conflict 
groups. Certainly, the United Kingdom does not share our view 
that we are----
    Mr. Conyers. Which position?
    Ms. O'Connell. That there is actually a worldwide armed 
conflict against al-Qaeda, the Taliban, and associated forces. 
We are involved in pursuing criminal wrongdoing using peacetime 
criminal law enforcement under international criminal law. 
That's the way the rest of the world views it. That's the way 
Pakistan views it. Afghanistan will view it that way as soon as 
we're gone in 2014. We're not going to be allowed to just drop 
bombs on people in that country without their permission. 
That's the way the African nations view it. That's the way 
South America sees it. We need the help of all these countries. 
And that means viewing these issues from the way the rest of 
the world views it.
    Mr. Conyers. Thank you very much.
    Please listen to President Obama tomorrow night when he 
talks about drones.
    Mr. King. [Presiding.] The gentleman's time has expired.
    And I would now recognize the gentleman from North 
Carolina, Mr. Coble.
    Mr. Coble. I thank the Chairman.
    Good to have you all with us today.
    Mr. Engel, in your testimony, you discuss at length the 
public safety exception to Miranda. As you point out, the only 
definitive case law concerning the public safety exception is 
Quarles. In your opinion, what is a reasonable amount of time 
that law enforcement should be able to detain a suspect without 
issuing a Miranda warning in order to obtain intelligence to 
protect the public safety?
    Mr. Engel. Thank you. You know, the question of how long 
law enforcement may detain an individual is--can be somewhat 
separate from the question of when they must read the Miranda 
warning.
    Mr. Coble. Correct.
    Mr. Engel. What I tried to emphasize in my testimony is 
Miranda is a rule of criminal procedure. It governs when 
evidence may be admitted in a criminal case. If the police or 
the FBI, or whomever, seek to collect information for 
intelligence purposes and the goal is not to take that 
information and use it in a criminal case, they never need to 
read the Miranda warnings. Not providing Miranda is not a 
violation of the Constitution in the way that indefinite 
detention without due process or the like would--you know, 
could be a violation of the Constitution. And so in terms of 
the duration, the pressure that law enforcement is on comes 
from other provisions in the Constitution, those like 
presentment, that we discussed, as well as the requirements of 
arraignment, which is actually separate from presentment when 
there's an arrest warrant in place.
    So, you know, what I would seek is the flexibility or what 
I think the law permits is the flexibility for a longer 
detention when necessary for intelligence purposes, even 
recognizing that law enforcement may not be able to use those 
resulting statements in a criminal--in a criminal proceeding.
    Mr. Coble. I got you. Thank you, sir.
    Let me ask you this, Mr. Engel. Should the public safety 
exception apply to threats that are imminent in nature, or 
should they apply to threats that may be months away?
    Mr. Engel. I think that's--if that is an issue--I support 
the government's efforts to read the public safety exception as 
broadly as they can. When the law enforcement is asking 
questions designed to, you know, to be directed at the public 
safety imminent threats and the like, I think there's a basis, 
and the Department of Justice has taken a basis for arguing 
that the public safety exception would apply. I would note, 
though, I think as Congressman's question suggests, that 
Quarles is a very different case. Quarles, they arrested the 
man. They said, where is the gun? He said, the gun's over there 
in the refrigerator. They said, okay, that statement can come 
in because the police wanted to find the gun.
    When you talk about non-imminent threats, when you talk 
about something more than are there any other bombs out there, 
and you seek to collect information on, you know, Mr. Tsarnaev, 
what have you and your brother been up to over the last several 
years, and who do you know in Dagestan or in Russia, or the 
like, it's difficult to see that the public safety excepting is 
truly implicated. While I support the government's attempts to 
read that broadly, there's a real litigation risk that those 
statements would not be admitted.
    Mr. Coble. Thank you, Mr. Engel.
    Let me put this question to all the witnesses, starting 
with Professor Chesney. How would you determine--define the 
term ``associated forces'' as it's used in AUMF, and--A. And, 
B, should having sympathetic view on being inspired by al-Qaeda 
qualify as associated forces?
    Mr. Chesney. Thank you, Representative Coble.
    Taking them in reverse order, I do not think having a 
sympathetic view can alone can make one an associated force. An 
associated force should have--well, to turn your second 
question, how do you define it? That's sort of the big mystery. 
I think this is an issue that Congress rightly has begun to 
focus on, especially after last week's Senate Armed Services 
Committee hearing, when it became clear that there is truly a 
lack of understanding, in this building and the ones around it, 
as to how the executive branch currently understands at the 
granular level, what is the test that makes some groups, some 
fellow traveling group, maybe, or subordinate group of al-
Qaeda, what makes for an associated force?
    Over the years--the standard's been around a long time. And 
in some applications, it makes perfect sense. But what the 
boundaries are is an incredibly important question that those 
of us who follow the stuff closely don't know the answer to. 
For my part, I think you should certainly be looking for some 
element of direction and control, not simply, you know, 
sympathy and ideological compatibility.
    Mr. Coble. I thank you, sir.
    Mr. Wittes. So I agree entirely that ideological sympathy 
is not adequate to consider somebody an associated force or 
consider a group an associated force. There are actually some 
rather tragic examples of that principle at work, though I 
agree with the principle. For example, there was a long time in 
which the United States did not--felt like it could not take 
action against Anwar Al-Awlaki because he did not--hadn't--you 
know, there was sort of some level at which he was not an 
operational figure, and it wasn't quite clear how far 
associated the force was. Eventually, that changed. Right?
    So, on the question of what constitutes an associated 
force, I think the relevant concept in one way or another is 
co-belligerency. And, you know, the question is whether the 
group in question has entered the fight on the other side.
    Now, that begs all the questions that Professor Chesney 
just asked, which is, you know, what constitutes actually 
having entered the fight. But I think if you ask yourself the 
question, is the--is the relevant group co-belligerent for 
purposes of international law? Has it stepped into an existing 
armed conflict on the opposite side of the United States? That 
gives you a sense of how associated forces should be 
understood.
    One further note on that question, the D.C. Circuit in some 
of the habeas cases from Guantanamo has had to treat the 
question of whether somebody who's an associated force, alleged 
to be a member of an associated force, is properly detained. 
And they've had some occasion in that context to answer 
questions of whether given groups are or are not associated 
forces. And so there's some texture to the definition that 
comes out of those cases.
    Mr. Coble. I thank you.
    Mr. Chairman, my time has expired. May I hear from Ms. 
O'Connell?
    Very briefly, Ms. O'Connell, if you will.
    Ms. O'Connell. Thank you, Mr. Coble.
    Well, I would look to the law of armed conflict to define--
to find any of these important definitions. And the law of 
armed conflict does not have a definition of ``associated 
force.'' The law of armed conflict defines who the combatant, 
who is a civilian, and we have a new term, who is in a 
continuous combat function? Those are the important terms of 
art. Individuals in those categories during actual armed 
conflict may be targeted and killed, detained without trial, 
subjected to military commissions. There is no such term as 
``associated force.''
    Mr. Coble. I thank you.
    Thank you, Mr. Chairman. I yield back.
    Mr. King. The gentleman has yielded back.
    Chair now recognized the gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you.
    I have three questions for the panel. First, we've 
established the standards for determining if someone is an 
enemy combatant. If someone is under the operational control of 
a belligerent power, he may be an unlawful enemy combatant if 
he's not in uniform, et cetera, et cetera, et cetera. All 
right. So we know the standards. But who applies the fact to 
the situation? Who determines the fact that Joe is an enemy 
combatant or not? Joe is captured in the United States or 
abroad. We claim he's an enemy combatant. What is the proper 
methodology and standard for determining--he claims he's not--
for determining that question?
    First Mr. Chesney or Mr. Wittes and then Ms. O'Connell.
    Mr. Chesney. The question of who the proper fact finer is 
for the individual level determination of whether you're 
subject either to detention or targeting may differ on those 
two dimensions. If it's a detention question and the person is 
held outside of Afghanistan, then--certainly, if it's at 
Guantanamo, we know what the process is going to be. There be 
an executive branch process on the front end by definition, but 
there will be habeas review on the back end for citizens----
    Mr. Nadler. Since habeas review has been rendered 
completely meaningless by the D.C. Circuit by saying the court 
must accept as factual every assertion by the government.
    Mr. Chesney. I don't agree with that description, 
respectfully, as to what the D.C. Circuit has held. The Latif 
did great he alarm people because it has language in there 
about presumptions of the reliability and the--when there's 
hearsay and so forth, there's a presumption that this is, in 
fact, what it purports to be. I don't think it's properly 
read----
    Mr. Nadler. Let's get back to the question.
    Mr. Chesney. So the question is detention. There's habeas 
for nonbattlefield captures. It's clear that would extend----
    Mr. Nadler. Okay.
    Mr. Chesney [continuing]. To one captured elsewhere.
    For targeting right now the process----
    Mr. Nadler. I'm interested in detention, not targeting.
    Ms. O'Connell.
    Ms. O'Connell. Yes. First, again, you have to see--the easy 
part is you only have to make these determinations with respect 
to people who are actually in situations of armed conflict, 
where there's real fighting. That makes it much easier for you. 
You don't have to worry about people like Mr. Padilla, who was 
arrested in Chicago, where there were no armed conflict 
hostilities going on. So leave that out. And of course----
    Mr. Nadler. Anyone arrested in a nonconflict area or 
situation cannot be an enemy combatant?
    Ms. O'Connell. That's correct. They can be--certainly, 
people who have not engaged in any armed conflict fighting, 
which was the case of Mr. Padilla in----
    Mr. Nadler. But that would make Ex parte Quirin 
noncombatants.
    Ms. O'Connell. Ex parte Quirin took place during the Second 
World War, when there actually were worldwide armed conflict--
--
    Mr. Nadler. But there wasn't armed conflict in Long Island.
    Ms. O'Connell. There were members of the regular armed 
forces of--so--but they were members of the regular armed 
forces of Germany.
    Mr. Nadler. Okay.
    Ms. O'Connell. And of course, Ex parte Quirin is terribly 
overstated. Remember, the Supreme Court only looked to see if 
it was appropriate and lawful to try these individuals in a 
military commission, not what their status was.
    Mr. Nadler. Okay.
    Ms. O'Connell. And we're also talking about law that's 
Post-World War II; the Geneva Conventions are 1949.
    Mr. Nadler. Okay.
    Ms. O'Connell. So it really shouldn't be as hard. And when 
we make mistakes about who might be arrestable because they 
were fighting in Afghanistan, we have an international 
community that is very----
    Mr. Nadler. So what is the proper way so the 
Whatchamacallit clan in Afghanistan delivers an individual to 
us and says, we're the Hatfield's; here's Mr. McCoy. We're 
telling you he's an enemy combatant; he's an ally of the 
Taliban. Give us the $5,000 bounty. Fine. Here he is. What 
should our procedure be at that point?
    Ms. O'Connell. We should have used Article 5 hearings under 
the Geneva Conventions to get to the facts as to whether that 
person is or is not an enemy combatant.
    Mr. Nadler. Article 5.
    Ms. O'Connell. That's what we did in the Gulf War.
    Mr. Nadler. Okay. Second question. Thank you.
    Second question. Ms. O'Connell, your position, as I gather, 
is that we cannot be at war with al-Qaeda because we can only 
be at war with a state actor.
    Ms. O'Connell. We can only be at war with--we only--we only 
participate in war in actual sovereign territory. We only 
participate in wars in real places. So if there is not--right 
now, we're at war. It's true we can be at war with--for 
example, in 2001, we went to war in Afghanistan, with the 
regular government of Afghanistan, the Taliban, and the al-
Qaeda forces who were joined with them. So in fighting with the 
Taliban and Afghanistan. We----
    Mr. Nadler. But let's assume the Taliban were defeated. We 
cannot be at war with al-Qaeda because they are a nonstate 
actor?
    Ms. O'Connell. We continue to be at war with al-Qaeda to 
the extent that they're fighting with the Taliban in 
Afghanistan. But today we're fighting a civil war on behalf of 
Afghanistan.
    Mr. Nadler. And once that is over, we cannot be at war with 
al-Qaeda?
    Ms. O'Connell. That's right.
    Mr. Nadler. We can only be at war with al-Qaeda through the 
agency of the Taliban, in effect?
    Ms. O'Connell. Right.
    Mr. Nadler. And the fact that al-Qaeda attacked us simply 
means that that's a criminal action, and that's the only way we 
can deal with it?
    Ms. O'Connell. We fought and won the war with al-Qaeda in 
Afghanistan; 9/11 led to the lawful war of self-defense in 
Afghanistan.
    Mr. Nadler. Okay. Let me ask you the next question. And I'd 
ask Ms. O'Connell and Mr. Chesney or Mr. Wittes. I gather your 
position is there is no legal authority for our holding people 
in Guantanamo.
    Ms. O'Connell. That's correct.
    Mr. Nadler. So let me ask you the following question. Let's 
assume that people in--that Guantanamo detainees organized an 
escape attempt. Let's assume that in so doing and attempting 
the escape, they killed American soldiers. Let's assume that we 
capture them and put them on trial for murder. Let's assume 
their defense was, it's not murder; you're a bunch of 
kidnappers. The United States kidnapped us with no claim of 
right and no legal right, and we're simply attempting to escape 
from our kidnappers and have every right to use whatever force 
is necessary to escape from our kidnappers. How would the 
United States respond to that legally?
    Ms. O'Connell. Well, I would hope from this day forward 
after these hearings, the U.S. will start getting in compliance 
with international law, and then it could charge those 
individuals with murder.
    Mr. Nadler. But as of now, we could not--as of now, there 
would be no defense?
    Ms. O'Connell. Well, if we're going to be consistent with 
our own strange world of law that we've built up after 9/11, it 
would be hard for us with a straight face to say that these are 
not persons who have committed an act of lawful war. But it 
would be possible--but under the real world of law, we're in a 
situation of pursuing these individuals as criminal--as 
criminal suspects if they killed any American anywhere----
    Mr. Nadler. But if their defense were that we're victims of 
kidnapping, we had a right to do it, we have no defense against 
that?
    Ms. O'Connell. They--we do have a defense against it. I 
mean, I'm not trying to argue for--I would like us to say, yes, 
they committed a crime of murder.
    Mr. Nadler. But their crime of murder is justified if the 
victims of the murder are kidnappers.
    Ms. O'Connell. Mr. Nadler, I can't get into the strange, 
Kafkaesque world how the global war on terror law works.
    Mr. Nadler. Let me ask Mr. Chesney to answer the same 
question.
    Mr. Chesney. I don't think that they are kidnap victims. I 
don't think that--even if they were, however, I don't think 
that prisoners in any situation like that have a right to use 
lethal force against the guards to escape. But more 
importantly, though, I don't accept the premise that they have 
that type of position to invoke in the first place.
    Mr. Nadler. Because we have a legal right to hold them 
there indefinitely?
    Mr. Chesney. I think so. And I think our court system has, 
after years and years of battle, to have the courts weigh in on 
this, they have sided with the government's position, that in 
fact we do have a legal right to hold these people.
    Mr. Nadler. Deriving from the fact they are enemy 
combatants?
    Mr. Chesney. I'm sorry.
    Mr. Nadler. Deriving from the fact they are enemy 
combatants?
    Mr. Chesney. Yes.
    Mr. Nadler. Okay. Thank you.
    Mr. Wittes. May I just add something?
    Mr. King. Gentleman's time has expired. Yield back.
    Do you want to go ahead and answer the question, Mr. 
Wittes?
    Mr. Wittes. I think the point that Professor Chesney makes 
that he does not accept the premise and that the courts do not 
necessarily accept the premise----
    Mr. Nadler. Which premise?
    Mr. Wittes. That these are not lawfully detained people 
and, you know, we're not entitled to be holding them, it's 
important to emphasize that all three branches of government 
institutionally in the United States are on the same page about 
this.
    Congress, in the 2012 NDAA, reaffirmed detention authority 
specifically for those who are part of or substantially 
supporting al-Qaeda, the Taliban, or associated forces. That 
has long been the litigating position of the Administration 
under--in substantial part both parties as to the scope of the 
lawfully detained--the scope of its detention authority vis--
vis individuals. And the courts have--the D.C. Circuit has 
repeatedly accepted that definition of, or something very close 
to it, of the detainable class. Supreme Court has repeatedly 
denied cert in those cases. So, you know, when we talk about, 
you know, these people regarding themselves as kidnap victims 
and attacking their guards, that is not the institutional 
position of any branch of the United States Government.
    Mr. Nadler. Thank you. I yield back.
    Mr. King. Thank the gentleman. Has yielded back.
    Now the Chair recognizes himself for 5 minutes. And I would 
turn first to Ms. O'Connell. And you referenced Article 5 of 
the Geneva Convention. And I would just ask the unlawful 
combatants, would they be subject to execution under that 
particular provision that you referenced?
    Ms. O'Connell. No. Once individuals are in the control of 
another power, they are no longer subject to killing without--
unless they have a trial.
    Mr. King. But that's subject to--that is exactly what I'm 
referencing, to put them through a trial.
    Ms. O'Connell. Yes.
    Mr. King. And then they are subject to the potential death 
penalty or incarceration.
    Ms. O'Connell. Yes.
    Mr. King. But didn't you tell us that you don't believe 
there's authority to detain enemy combatants?
    So my follow-up question would be, then, if they are 
subject to a death penalty under proper adjudication, but they 
are unlawfully detained at Gitmo, that doesn't seem consistent 
to me with your testimony.
    Ms. O'Connell. I believe there are a number of people at 
Guantanamo Bay who should be subjected criminal trials. But 
those would be Article III trials, not military commission. So 
everyone at----
    Mr. King. I heard that.
    Ms. O'Connell.--Guantanamo Bay is there unlawfully, in my 
view. Persons----
    Mr. King. How about if there were there unlawfully, then, 
then they would be subject potentially to the death penalty?
    Ms. O'Connell. They could be transferred to----
    Mr. King. Okay. Thank you. I'd like to explore a little bit 
different line of questioning here than has been--as I listened 
to the testimony--I think it's excellent witnesses in every 
single seat here, with obviously different perspectives.
    One of them, yours seems to be retrospective, Ms. O'Connell 
and just to some extent prospective in that anticipating that 
the conflict winds down in Afghanistan and then predicting that 
our legal authority also winds down, gentlemen on this side 
don't agree that it winds down because the conflicts looks like 
it's going to exist, regardless of the President's announcement 
that there will be a date certain that the war will be over.
    I reflect instead back on let's say 1968, the Tet 
Offensive. And I recall the infiltration of enemy troops and 
also the local South Vietnamese enemy troops. We saw them. They 
infiltrated into the south and struck at will all over the 
country simultaneously. That was--that's a scenario that I 
think of here in the United States when I see reports of 
potentially--potential enemy combatants infiltrating into the 
United States across our southern border has been referred to 
by Robert Mueller, our Director of the FBI. And also those who 
came in here on visas, whether they were tourist visas, student 
visas, whatever means, and overstayed their visas.
    But we have reports of significant numbers of people who 
are persons of interest from Nations of interest. I don't know 
that number. I could speculate on a number, but I don't think 
we know that number.
    But I'm not as concerned about an individual bombing. And I 
was relieved in a way that--I expected the Boston bombing, not 
in Boston. I didn't know the location. But I expected we would 
face another terrorist attack, having lost three lives and 
scores of people wounded, could have been far worse than that, 
was intended to be far worse than that.
    But what about this scenario that's not retrospective but 
prospective to this extent. What if these infiltrators that we 
know are in this country today that are persons of interest 
from Nations of interest that are inclined to have the kind of 
affiliations that would--they are far more likely to be part of 
an enemy al-Qaeda cell. What do we have prepared for that? We 
don't have ex post facto in this country.
    So for us to be adjusting our laws believing that a 
conflict is winding down, as opposed to preparing ourselves so 
that we could deal with a scenario that I've described here as 
a broader and a very, very much a terrorist all-out attack 
within the United States and multiple locations.
    And if you remember on September 11th, we didn't know how 
broad that was going to be. We didn't know it was going to end 
up being four locations. All the planes were grounded. We shut 
down weddings and football games. A lot of American life was 
shut down because we didn't know how pervasive it was.
    So I'd suggest instead--and I go first to Mr. Engel--what 
do we do to prepare for a scenario like that, rather than how 
do we look backwards on this thing and try to wind something 
down?
    Mr. Engel. I think you raise, you know, a very good and 
important question. What we need to do is maintain the maximum 
flexibility within the law. No one is saying that the United 
States needs to bend the laws or bend the constitution. But 
when you have techniques and tools within the Nation's arsenal 
that have been deemed to be lawful by the courts, I think the 
wise choice to do is to preserve that flexibility and to keep 
those options open.
    And we should not unilaterally be tying our arms behind our 
back by deciding that a particular threat seems to have waned, 
and so we should have a statute that says, regardless of 
circumstance, the President may not, you know, pursue these 
options. And I think we have been very successful over the last 
10 years, because we've recognized, since 9/11, that the war on 
terror is a military problem and it's a law enforcement 
problem. And we have used all of our repertoire in many, many 
departments of the U.S. Government. And I would--I would just 
counsel against taking options off the table based upon, as you 
suggested, assumptions about where things are now or where the 
threat is now. Because we weren't prepared on 9/11, and we have 
to continue to be prepared going forward.
    Mr. King. Would you advocate for setting up a structure of 
adjudication that could quickly process some of these 
individuals into a military detainee category that would allow 
for enhanced interrogation so that we didn't get them 
Mirandized and taken out of the information source so that we 
could quickly identify the source of the attacks and perhaps 
prevent others?
    Mr. Engel. I think if we needed--if we thought that there 
were gaps in the law that needed to be remedied, if there were 
new structures. And one of those structures, I think, the gap 
that I see now is with respect to some of the ambiguities about 
who is in the conflict. Who can we detain? Who are these 
associated forces? That kind of proposal, as well potentially 
as an Article III court to evaluate detention decisions, you 
know, separate from what we--the process we've----
    Mr. King. But aren't some of the ambiguities also the doubt 
on where the jurisdiction lies and the political question 
that's been part of this dialogue, too? Couldn't this Congress 
provide a definitive course that could be decisive and perhaps 
lifesaving?
    Mr. Engel. Sure. When I was in the government, I was part 
of an initiative that Attorney General Mukasey spearheaded to 
come up with a robust statutory procedure to deal with 
detention in the armed conflict against al-Qaeda. It don't move 
very far in 2008. We haven't really seen it revived in the new 
Administration. But certainly some kind of regularized 
statutory process to deal with these issues going forward would 
certainly be a, you know, would seem to be a prudent course. 
The courts have essentially muddled through been the DDC, the 
District Court in Washington D.C., and the D.C. Circuit over 
the last several years. And they've made some law that 
establishes these procedures. But certainly the people who are 
supposed to make law in this country are here in Congress, and, 
you know, Congress taking up this issue would certainly--I 
would certainly support that.
    Mr. King. I thank you. I just quickly, as I've used my 
time, I go to Mr. Chesney, if you could keep it short.
    And then perhaps to Mr. Wittes for your comment on that.
    Mr. Chesney. Will do. On the process, I guess I would say 
that I was completely in agreement several years back with Mr. 
Engel on the need for Congress to step in and craft that 
process. Truth is, over time, the D.C. Circuit and the D.C. 
District Courts have ironed out a process that it's hard to 
imagine that Congress would create something that would be much 
different than what they've already created. So could be good 
to entrench it in statute, but I think it's already there.
    As to the Tet-like scenario you described, it certainly 
puts the spotlight on the need for serious attention to the 
immigration side to things, in the intelligence collection side 
of things. As to this question of detention, this kind of comes 
back to the question of, does one think that military detention 
is going to get us something real and valuable that the current 
structure of the criminal process with the high-value 
interrogation group involved wouldn't get you? And I guess I've 
stated my views on that.
    Mr. King. Thank you.
    Mr. Wittes.
    Mr. Wittes. I have very little to add to that except for 
the following. You know, I do think the one thing that could 
fundamentally change the way I regard what the appropriate 
detention authority is domestically is if you had a sudden very 
large influx of numbers into the system. And so if you imagine 
the scenario that you describe, in which, you know, a very 
large number of people are suddenly--you know, have to be 
detained, that could really fundamentally change the 
calculations that I have in my recommendations with Professor 
Chesney today. On the other hand, that is also a situation in 
which I think this body would step up very quickly and pass 
whatever authorization the executive felt it needed to deal 
with that situation.
    So when I think about the situation that we face today, I'm 
less concerned about the dramatic changed facts, which I think 
this body would turn around and address pretty quickly, than I 
am about the next time we arrest somebody and have to decide 
exactly how to process him, and we have to go through a, you 
know, very wrenching sort of public argument to figure that 
out.
    Mr. King. I thank you. I thank all the witnesses. And my 
time has expired.
    The Chair now recognizes the gentleman from the 
Commonwealth of Virginia, Mr. Scott.
    Mr. Scott. Thank you.
    And I thank the witnesses. It's been very informative. I 
want to follow through on some of the questions that the 
gentleman from New York asked about the process of declaring 
someone an enemy combatant. And who makes it, where it's made 
and how it's reviewable. I asked the Attorney General Ashcroft, 
when we were doing this--when this issue first came, if you are 
factually innocent of the charge, wouldn't you get to present 
that evidence? And his response, as I remember it was, at the 
end of the conflict, that at the end of war on terrorism, 
whatever that means, you can--after you've been in jail all 
that time, you can present evidence that it wasn't you.
    So my question is, exactly who makes the determination that 
someone is an enemy combatant, and what is the standard of 
proof? Is it preponderance of the evidence? More likely than 
not? Not clearly erroneous? Beyond a reasonable doubt? What is 
the standard by which you are designated an enemy combatant? 
And then when do you get to review that determination?
    Ms. O'Connell.
    Ms. O'Connell. Mr. Scott, I'd love to answer that question. 
And I'd also like to comment on Mr. King's last question to the 
other witnesses that I didn't get to respond to. Because I 
think it's an essential question that we're really talking 
about today. How should we prepare this country to defend our 
people from the next terrorist strike? Should we recreate the 
law, create greater flexibility to declare people enemy 
combatants, as Mr. Scott inquired, or should we stick with the 
law that we have now and say to the world, this is a law-
abiding country? We do things by the book.
    We found out that, in fact, successful counterterrorism is 
based on following the letter of the law as it currently 
exists. There was no greater recruiting tool to militant 
groups, terrorist organizations, than Abu Ghraib, which was a 
demonstration of our failure to follow the law of armed 
conflict. Today, the number one recruiting tool to terrorist 
organizations, to making people dangerous to this country, is 
the drone policy--killing people beyond armed conflict zones in 
clear violation of the law of armed conflict.
    We have heard, Mr. King, from Admiral Blair, from General 
Cartwright, from so many people--the Rand Corporation--that the 
way to deal with the next terrorist threat to this country is 
by making it clear to the world that we believe in the rule of 
law in this country, and we're going to follow it. We're not 
going to make up new rules, create new categories of persons--
these enemy combatants in the war on terror that may or may not 
ever end, that says to the world, we don't care about the law. 
And that makes this country--puts this country in greater 
danger than if we say the Geneva Conventions determine who is 
an enemy combatant. We're not going to make up a new rule. We 
know who is a criminal suspect accused of terrorist planning 
and plotting. Those people should be subject to arrest and 
trial. If they resist arrest, then police, of course, are 
authorized to kill known dangerous persons, very much the way 
Osama bin Laden was captured. That's the way forward.
    Mr. Scott. The Hamdi decision put a limit on some of this. 
You have some kind of--you have to have some kind of procedure. 
What is the burden of proof that the government has to 
establish to declare someone an enemy combatant? Mr.----
    Mr. Wittes. So, first of all, there's an internal executive 
judgment, and depending on where that person is held, those 
procedures differ.
    But for the Guantanamo detainees, they then have access to 
U.S. courts to challenge whatever judgment the executive made 
that they are detainable. Those cases, there have been a lot of 
them, of.
    Mr. Scott. If you're held in Guantanamo----
    Mr. Wittes. Evidence proves----
    Mr. Scott. If you are held in Guantanamo, you have access 
to courts.
    Mr. Wittes. You have access to the District Court in 
Washington and, through there, the D.C. Circuit and the Supreme 
Court.
    I believe--I--my numbers may be wrong. I believe there were 
14 detainees who won their cases in the District Court on 
habeas and were released as a result of that.
    Mr. Scott. What is the standard of proof?
    Mr. Wittes. Standard of proof is preponderance of the 
evidence.
    Mr. Scott. So, you know, more likely than not, you're an 
enemy combatant.
    Mr. Wittes. Correct.
    Mr. Scott. And that's the standard that you're held on. And 
if they show that you're more likely than not an enemy 
combatant, you get to be held till when?
    Mr. Wittes. Till the termination of hostilities.
    Mr. Scott. And do you get----
    Mr. Wittes. Or till the termination of hostilities or, as 
in--as in a great number of the cases, until there's a 
prudential judgment that your detention is no longer necessary. 
And, you know, a lot of people at Guantanamo have----
    Mr. Scott. More likely than not isn't a real----
    Mr. Wittes. I'm sorry?
    Mr. Scott. More likely than not, preponderance of the 
evidence, isn't much of a standard to hold someone. And then 
they would have to prove their innocence at that point?
    Mr. Wittes. There is--look, there's no question that this 
is not a criminal proceeding. It is a detention on 
significantly less than criminal standards.
    Mr. Scott. Let me ask one other question. And that is, 
wiretapping for terrorism. We have a constitutional right to be 
free from unreasonable search and seizures. And there are 
procedures of wiretapping some people's phone conversations. 
That standard is a lot less if it's an investigation for 
terrorism. You go into FISA court and get warrants based on a 
much lower standard. One of the problems occurred in the USA 
Patriot Act where we started sharing information from terrorism 
to law enforcement. And then reduced the purpose of the wiretap 
from primarily terrorism to terrorism being a significant 
purpose. I asked the Attorney General Gonzales, if it's not the 
primary purpose, what could be the purpose of a terrorism 
warrant? And he blurted out ``criminal prosecution.'' Which is 
exactly the problem. Because you'll be running a criminal 
prosecution without all of the probable cause and other things 
you need to get warrants.
    Can some of the witnesses comment on the problems of 
wiretap and other invasions in the privacy under the guise of 
terrorism when you're really running an ordinary criminal 
prosecution?
    Mr. Engel. Sure. You know, I take--Congress spent a lot of 
time modernizing the FISA statute several years ago. And that--
you know, statute has been authorized and reauthorized at 
times. From my point of view, I confess 30 days after the 
Boston Marathon bombing, my concern is not that too much of 
terrorists--of what the intelligence services are able to pick 
up under their lawful authorities is shared with law 
enforcement for prosecutions, but that there are still barriers 
and obstacles to information sharing between our intelligence 
services and the FBI. And, you know, so, again, I think there 
are certainly important constitutional concerns that are at 
work here. There is a very articulated statutory requirement 
which involves Article III judges being involved with these 
warrants. But there is a balance on both sides. We must----
    Mr. Scott. The balance is--you're exactly right. If you're 
investigating terrorism, you've got an easy way. All you've got 
do is declare terrorism, and you get all the warrants you want. 
The check on that has been that you can only use these for 
terrorism. When you start running criminal investigations 
pretending to use terrorism as a significant but not primary 
purpose, your primary purpose is running a criminal 
investigation when you don't have probable cause, then that's 
when you start getting into problems. I don't think there's 
much discussion in the ability to get warrants if you're 
investigating terrorism. That's okay. But if you're running a 
run-of-the-mill criminal investigation, you shouldn't be able 
to use terrorism as an excuse to violate the Constitution.
    Mr. Engel. If we believed that the Department of Justice 
and the FBI were misusing the FISA procedures to pursue 
nonterrorism investigations, that would be certainly a cause 
for concern. I am not personally aware of that going on. But, 
you know, I don't have oversight capabilities over the 
Department of Justice.
    Mr. Scott. Ms. O'Connell, you want to make a comment on 
that?
    Ms. O'Connell. Mr. Scott, I am not an expert on the FISA 
laws or wiretapping, and I really try to limit my commentary to 
where I am expert, which is law of war.
    Mr. Scott. Mr. Chairman, I think we created the problem by 
reducing the standard from primary purpose of the warrant being 
terrorism to a significant purpose, which invites the inquiry, 
what is the primary purpose? And when the Attorney General 
blurted out ``criminal investigation,'' I mean, I think that 
let the cat out of the bag.
    I yield back.
    Mr. King. I recognize the gentleman from Virginia's point. 
And then the gentleman has yielded back.
    And recognize the judge from Texas, Mr. Poe, for 5 minutes.
    Mr. Gohmert. Mr. Poe is not here.
    Mr. King. Excuse me. Mr. Gohmert for 5 minutes.
    Mr. Gohmert. I'm here at your far left. If you want to make 
that note.
    Mr. Engel. But your right.
    Mr. Gohmert. But I agree with my friend from Virginia on 
everything he said, except that apparently it may be easier to 
get warrants if you are allegedly involved in terrorism or if 
you've written an article critical of this Administration, 
either way opens the doors, apparently, to warrants.
    But let's go back to the interrogation of the Boston 
bombers, Dzhohkhar Tsarnaev.
    What would have happened had he not been given his Miranda 
rights for after--until after 72 hours of interrogation? What 
would have happened to the criminal proceeding whenever that 
occurs?
    Mr. Engel. Again, there--you know, there is--I think the 
short--the short answer is probably the result of his criminal 
trial would be no different, frankly. There is a risk----
    Mr. Gohmert. But they wouldn't have been able--the 
difference, isn't it, that they wouldn't have been able to use 
anything he said after the time at which he should have been 
arrived--advised of his Miranda rights. Correct?
    Mr. Engel. That's right.
    Mr. Gohmert. It would not have prevented his being 
prosecuted, it would just have changed some of the things being 
admissible that he said after that point. Correct?
    Mr. Engel. Exactly. The government would run the risk not 
being able to admit those statements.
    Mr. Gohmert. And so----
    Ms. O'Connell. Unless, of course, they corroborated what he 
said through other means.
    Mr. Gohmert. Right. Exactly. They had a pretty solid case 
before.
    Ms. O'Connell. Exactly.
    Mr. Gohmert. And you add admissions against interest to the 
person whose car was highjacked. They had a pretty solid case 
even without anything he said. That was my point. There was all 
this concern and fear expressed publicly about, gee, they've 
got to advise him of his Miranda rights. Should they? Really, 
it wouldn't have made much difference at all, if any. That was 
my point.
    And, Ms. O'Connell, you pointed out the good job of 
interrogation that was done, I believe, the Underwear Bomber. 
But that was in December of 2009. And that was before we 
learned of the purging of training materials for FBI and for 
intelligence. And we found out about this Administration's 
weighing in and stopping career individuals who taught about 
radical Islam being prevented from teaching about radical 
Islam. And I was, frankly, shocked when our Attorney General 
was sitting at this table last week how little he apparently 
knows about the purge of the materials.
    There are a couple of us that have been through purged 
materials. I think it's ridiculous that they classified those. 
I think people ought to know how absurd the things are that 
they have classified and purged from people being taught. There 
are things that have been made public that have been eliminated 
because of concerns that it might offend, apparently, radical 
Islamists.
    But I want to take your attention to a December 8 New York 
Times article--of course, The New York Times is not usually 
kind to me, but they did a good job reporting December 8th of 
2008, ``Five Charged in 9/11 Attacks Seek to Plead Guilty.'' 
And they went through and they talked about Khalid Shaikh 
Mohammed and the other four. And actually, he prepared the 
pleading that all five of them signed and agreed to. And in 
that pleading, he said such things--and this was declassified--
``So if our act of jihad and our fighting with you caused fear 
and terror, then many thanks to God because it's Him that has 
thrown fear into your hearts which has resulted in your 
infidelity, paganism, and your statement that God had a son and 
your Trinity beliefs.'' Also said, ``We fight you and destroy 
you and terrorize you. The jihad is God's cause and a great 
duty in our religion. We have news for you. The news is you 
will be greatly defeated in Afghanistan, Iraq, and that America 
will fall politically, militarily, economically. Your end is 
very near, and your fall will be just as the fall of the Towers 
on the blessed 9/11 day.''
    Now, I understand that there are being recruiting tools 
used around the world. Ms. O'Connell, I know you were talking 
about that. But I would submit to you the Muslims I've talked 
to in Afghanistan that have fought the Taliban successfully, 
until we began to occupy Afghanistan and let them come back, 
but they say the best recruiting tool--and it's not only them. 
People I've talked to in Iraq and in China and in the continent 
of Africa, South America, they said one of the best recruiting 
tools they've got that they use, and we found it in their 
material, the way you fled South Vietnam, the way you left 
Beirut after you were attacked, the way you did nothing in 1979 
when you were attacked, the way you have now left Iraq under 
the influence of Iran, how you are leaving Afghanistan as a 
leader that we released from Guantanamo--and Mr. Masood told me 
that he had been on--that this terrorist who was released for 
humanitarian purposes now on television nationally in 
Afghanistan saying, ``We all know now the United States has 
been defeated. They are begging us to come talk to them at the 
negotiating table. But we don't care. You know, we'll be back 
in charge so you better come beg our forgiveness, join our 
forces.'' And they are getting people to come back and join the 
Taliban because of the fear, because the recruiting tool is, 
America's been defeated again.
    And I would just hope that the message will not be after 
this hearing that America will no longer be at war with al-
Qaeda and radical Islam. That we will not give in to that.
    Ms. O'Connell, I've talked to people in England and other 
places that say, we hope and begging you, please don't give up 
the fight, because they are scared of what happens in America 
gives up the fight.
    So does anybody know--just time has expired--but I'm just 
curious, does anybody know why the guys that wanted to plead 
guilty, that were ready to plead guilty, that went through a 
lengthy plea hearing where Khalid Shaikh Mohammed admitted all 
of these things that he had done, does anybody know why they 
have not yet been convicted? Why they have not had their 
conclusion to the guilty plea and the admissions they've made?
    Mr. Chesney. I will--if someone knows better, I'm going to 
speculate a little here. But my recollection is that in 
military criminal justice proceedings, whether it's a military 
commission or courts-martial, in contrast to how we do it in 
the civilian Federal courts, if it's death penalty, I believe 
there's either in the court-martial system an outright ban on 
just pleading guilty and getting the death penalty. There has 
to nonetheless be a proceedings. Or at least there's a 
disposition against that. Maybe Professor O'Connell might know 
more about this.
    Ms. O'Connell. Basically, that's correct. You can't just 
plead to be executed. And I would point out, Mr. Gohmert, that 
in fact KSM wanted to be a martyr in order to help this very 
process that you just indicated, that if there were--if he was 
martyred, executed by the United States without any kind of 
fair trial, that would lead more people to join.
    Really, I'm the wife of a proud United States Army soldier. 
And I believe in the strong defense of this country and support 
our serving men and women just as much as I can. Many of our 
students are currently in Afghanistan fighting under orders of 
our President. And what I--what I know----
    Mr. Gohmert. They maybe some of the ones that begged us to 
change the rule of engagement so they don't have to get shot 
before they can defend themselves. I talk to them, too.
    Ms. O'Connell. I know that those young men and women fight 
right. They fight under our Constitution. They do what the law 
requires. And they know that that's the sure way to succeed in 
any venture that this country undertakes in the world.
    Mr. Gohmert. So you say we are succeeding in Afghanistan, 
that's your position?
    Ms. O'Connell. The current war in Afghanistan is a war to 
keep Mr. Karzai in power. It's an anti-insurgency war. And we 
have succeeded so far in keeping Mr. Karzai in power. I think 
Mr. Karzai's long-term stability is dependent more on his 
creating a rule of law system, a political system that works 
for all the people of Afghanistan and not an unending civil----
    Mr. Gohmert. You know that's not going to happen, though, 
from Karzai.
    Ms. O'Connell. Mr. Gohmert, like you, I'm a person of 
prayer and of faith. And I pray every day that that will 
happen. And I actually believe very strongly that--that this 
country is in a position to support Mr. Karzai and all Afghans 
to move toward a rule of law system and the protection of human 
rights.
    Mr. Gohmert. Let me put something else on your radar, then, 
that we can both pray for. What the Muslims in the northern 
area have told me is, If you will just allow us to elect our 
governors, our mayors, select our own police chiefs instead of 
having the president of this country appoint all of those 
people, we've got a better chance of fighting the Taliban after 
you're gone, than if you leave this stovepipe system where the 
Taliban can knock off the central character and then be back in 
charge.
    So I'm hoping that we give them more of a federalist system 
on our way out. It will help them and us. So thank you for 
being here today.
    Mr. Goodlatte. [Presiding.] I thank the gentleman.
    The Chair recognizes gentlewoman from Texas, Ms. Jackson 
Lee, for 5 minutes.
    Ms. Jackson Lee. Thank you very much. To the witnesses, let 
me thank you all for your testimony. I was detained as a 
counterterrorism hearing that indicated to me, first of all, I 
will not disagree with my good friend, but I will say that 
America has suffered few defeats. And, frankly, Afghanistan and 
the treasure that we have lost, even the treasure we've lost in 
Iraq, despite its conflictedness, I will never accept defeat by 
this Nation. Frankly, I believe that we have evidenced, if you 
will, if it is not where we would like it to be, we have 
certainly evidenced some strides. It will be up to many of the 
good men and women ultimately of Iraq and ultimately of 
Afghanistan to preserve the democratic principles that we have.
    I do think it is worth noting in the previous hearing, 
since it was a public hearing, of those witnesses' enormous 
concern about al-Qaeda and its pervasiveness and its 
worldwideness and its presence. And I think it is important to 
be in this hearing--and I'm going to be very brief because I am 
moving to another meeting that I have to be at. But it's 
important to have these juxtaposed hearings--because what it 
says about America is that we are aware of the worldwide threat 
of terrorism, but we hold dear and we cherish our 
constitutional values as well as our constitutional process. 
And I think--I think it is evident that none of us will give up 
that constitutional process.
    So I'm going to be very brief. I'm going to ask the 
Chairman to allow me to put into the record, March 7, 2013, a 
letter addressed to Senator Rand Paul. And the simple question 
to the Attorney General was, does the President have the 
authority to use a weaponized drone to kill an American not 
engaged in combat on American soil? The answer to that question 
is no, signed Eric Holder, Jr.; ask unanimous consent, Mr. 
Chairman, to put this into the record.
    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    [The information referred to follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                               __________

    Ms. Jackson Lee. I think that also speaks to a clear 
firewall as it relates to some of the issues we are talking 
about.
    Just to Mr. Chesney. And let me acknowledge your 
affiliation with the University of Texas School of Law. I love 
the sign. And thank you, Texan. And to the Brookings Institute 
and to all of you, we respect your respective affiliations as 
well.
    But let me just ask Mr. Chesney, is it appropriate for 
bomber number two out of Boston Marathon to be tried in a 
civilian Federal court? And I would ask all of you just a yes-
or-no answer, or quick sentence.
    Mr. Chesney.
    Mr. Chesney. Yes.
    Mr. Wittes. Yeah, that's the only appropriate disposition.
    Mr. Engel. No disagreement, yes.
    Ms. O'Connell. Emphatic yes.
    Ms. Jackson Lee. And I think that sets a marker because as 
the investigation grows, he is a terrorist or alleged terrorist 
or perpetrator against the United States, but it is important 
to have that fine line of how we draw and whether or not we 
have the provisions to be able to try that case as well.
    To Mr. Engel, the FBI instructs that after any and all 
applicable public safety questions have been exhausted, agents 
should advise the arrestee of his Miranda rights, seek a waiver 
of those rights before any further interrogation occurs absent 
exceptional circumstances.
    Boston Marathon was an example that where the public 
actually got to see something other than television, which was, 
where are the Miranda rights? What's your take on that?
    Mr. Engel. Well, I think you correctly identified 
exceptional circumstances in the policy and I think that the 
agents determined or the Department of Justice, this was done 
at high levels, determined that it was appropriate to question 
Mr. Tsarnaev without giving the Miranda warnings for as long as 
they were able, you know, prior to the termination of the 
interrogation. I have some concerns that it could have been 
terminated too early, but, you know, I wasn't there and I don't 
have the information there. So, the FBI does have that 
flexibility, but they also have constraints to bring the 
individual before a judge and to provide him with a defense 
counsel.
    Ms. Jackson Lee. Let me not ignore any of the other 
witnesses. I indicated that I'm going to yield back my time 
because of another engagement, but what I would offer to say 
is, I want to look further into the safety exemptions, 
exceptions. I find that it was constructive. I want to be right 
on it. I want to see whether we need to look further into it, 
and I also want to make sure that we continue to have this fine 
infrastructure that protects our constitutional process but yet 
does not let us take one step back on fighting against the 
dastardly actions of terrorists against the United States or 
elsewhere.
    I yield back.
    Mr. Goodlatte. The Chair thanks the gentlewoman and 
recognizes the gentlemen from Georgia for his questions for 5 
minutes.
    Mr. Johnson. Thank you. I would--I would point out the fact 
that as conditions change, then our constitution, which is the 
foundation of our laws, must grow and must look at our rights 
and liberties under the constitution in light of today's 
reality, and so I think when we have strict construction of the 
United States constitution by anyone, be it on the left or the 
right, I think that's action that is misguided or thinking 
that's misguided. I believe that the constitution grows and 
interpretations have to be rendered in accordance with the 
times that we are living in.
    And that being the case, I mean, that's how it grows is by 
actions being taken and then those actions being taken to court 
and challenged, and the U.S. Supreme Court being the final 
arbiter of whether or not a particular action is constitutional 
or not. And we've had instances throughout the history of the 
Nation that have required the rights and liberties that we 
enjoy under the constitution to be limited or expanded. I point 
to Ex parte Milligan back in 1862 during the civil war or at 
the time of the civil war, where President Lincoln suspended 
habeas corpus to all persons in military custody, and he 
further proclaimed that rebels and insurgents, their aiders and 
abettors within the U.S. and all persons discouraging volunteer 
enlistments or guilty of any disloyal practice, affording aid 
and comfort to rebels against the authority of the United 
States shall be subject to marshal law and liable to trial and 
punishment by court marshals or military commission.
    Congress subsequently authorized the suspicion of habeas 
corpus wherever--whenever the President judged it necessary in 
the public safety. And so, under that declaration by the 
President and the act of Congress, a citizen from the State of 
Indiana alleged to be a senior commanding general of the Sons 
of Liberty, a group with links to the Confederacy, was arrested 
and charged with planning to commit acts of sabotage against 
the union, and the government argued that Milligan could be 
tried by military commission or that if the military 
commissions lacked jurisdiction over the case, the military 
could hold Milligan as a prisoner of war until the end of 
hostilities, at which time he would be remanded to civil 
authorities. And the case went to the U.S. Supreme Court and 
the court found that such actions can never be applied to 
citizens in States which have upheld the authority of the 
government where the courts are open and their process 
unobstructed. So, in other words, that the fact that you're 
going to charge a United States citizen with an act, you know, 
you still, that citizen was not deprived of their right to 
habeas corpus and all other Constitutional rights that easily, 
and so--and so then you had the case of Ex parte Quirin. In the 
summer of 1942, eight German nationals attempted to enter the 
U.S. by submarine, and then landed in Nazi uniform to ensure 
that they would have prisoner of war status. Eight of the men 
were--all eight were born in Germany but had lived in the U.S. 
for extended periods of time, and one of those eight actually 
proclaimed himself to be a U.S. citizen, that being, Mr. 
Quirin. And the conspirators who were going to commit acts of 
terrorism in the U.S. were apprehended, and they were charged 
and convicted in a military tribunal and sentenced to death.
    And now the defendants in that case argued that--or the 
appellants argued that the President exceeded his power in 
ordering military commission and Fifth and Sixth Amendment 
protections. The President had ordered that these people not 
have those constitutional rights, and the court ruled that that 
was improper, Ex Parte Quirin, and the court found that the 
citizenship of the saboteurs was irrelevant to the 
determination of whether they were enemy belligerents or not. 
So excuse me, I misspoke. The court ruled in that case that 
these men could be deprived of those constitutional rights. But 
the thing was, when you read those two cases together, because 
Quirin did not overrule Milligan, so, therefore, you have to 
read those two together, and when you do, there has got to be a 
showing of an association with enemy forces.
    So, if you can show an association with enemy forces to a 
citizen of the United States of America applied to an act 
within the United States of America, an act of terror or an act 
of crime, because crime and terror are matters of degrees but 
both are crimes, especially when someone has been hurt. So I 
put all of that out there to say that, isn't it prudent that 
with the recent bombing taking place in Boston, involving a 
United States citizen, who was questioned for 16 hours by--in 
addition to civilian law enforcement, military interrogation, 
without having been read Miranda warnings, and then, within the 
48 hours that the law requires that a person arrested in 
civilian population or for a civilian crime, be brought before 
a magistrate, at which time they have to be read their Miranda 
warnings, wouldn't you say that in this particular instance the 
government has proceeded carefully and within the boundaries of 
current law? Would each of you all say that?
    Mr. Chesney. Representative Johnson, I very much agree that 
the government proceeded carefully and within the bounds of law 
here in the Tsarnaev case.
    Mr. Johnson. All right.
    Mr. Wittes. I agree with that as well.
    Mr. Engel. Based on what I know, it sounds like the 
government proceeded appropriately. I have some concern as to 
whether the interrogation of Mr. Tsarnaev was ended early than 
it needs to be done, but certainly with respect to civilian 
custody and prosecution in an Article III court and the like, 
that seems, you know, it's done appropriately.
    Mr. Johnson. Well, assuming that law enforcement and 
military interrogators were satisfied that there was no 
association with enemy forces, then would you agree that the 
government proceeded lawfully and within the bounds of the 
constitution?
    Mr. Engel. Clearly the government proceed lawfully, and my 
comments are solely within regard to the civilian law 
enforcement system. In other words, I'm aware of no fact that 
suggests that Mr. Tsarnaev should have been declared an enemy 
combatant and put into the military justice system. The 
question within the boundaries of the civilian justice system 
is, were the interrogators, law enforcement interrogators 
confident that they have obtained all of the information on 
future terrorist plots or terrorist organizations that was 
available at the time that Mr. Tsarnaev was read his Miranda 
warnings or was----
    Mr. Johnson. Well, there is----
    Mr. Engel [continuing]. There some lawyer who----
    Mr. Johnson. There is no evidence that they had not 
convinced themselves that he was not associated with foreign 
enemy forces.
    Mr. Engel. That's right. I don't believe that that was at 
issue.
    Mr. Johnson. All right. Thank you.
    Ms. O'Connell. Mr. Johnson, the government proceeded 
lawfully, I agree with my copanelists, but I believe the 
correct precedence to look at are not Ex parte Milligan and 
Quirin but rather the hundreds of successful terrorism 
prosecutions that this country has held, including such 
prosecutions as that of Timothy McVeigh but also the Blind 
Sheikh associated with the embassy bombings, and of course, the 
many, many successful Abdulmutallab----
    Mr. Johnson. Yeah.
    Ms. O'Connell. Et cetera, et cetera. Those are the right 
precedents.
    Mr. Johnson. I agree that our civilian justice system has 
been quite effective in dealing with internal cases of 
terrorism, but I would challenge you, because you seem to not 
want to construe the constitution or our constitutional 
liberties in accordance with the realities of the time that we 
are living in, and perhaps that's too strong a statement for me 
to make, but would you agree that as America encounters new 
challenges, such as home grown terrorists, who are associated 
with enemy forces, do we need----
    Mr. Goodlatte. I think this is the last question.
    Mr. Johnson. Yes. Do we need more--do we need a 
Constitutional amendment or do we need legislation in 
accordance with our constitution that would apply to a 
situation, such as the one we faced in Boston? Do we need to 
take some legislative action or amend our constitution in some 
way to protect our citizens?
    Ms. O'Connell. No, Mr. Johnson, I think our constitution 
has served us extremely well when we have complied with it. The 
Fifth Amendment to the constitution protects the right to life 
of all persons, and that right to life----
    Mr. Johnson. And not just citizens but persons.
    Ms. O'Connell. Not just to citizens. No person shall be 
deprived of their right to life without due process of law, and 
that due process depends on whether the person is in a 
situation of war, armed conflict or peace. That's very current 
law. That is law that we are constantly involved in 
participating and making.
    The area of customary international law, where we get our 
definition of ``armed conflict'' is up-to-date, up to the 
minute. It is reflecting the problem of terrorism faced, not 
just by the United States but our close allies, the United 
Kingdom, Germany, India, et cetera, et cetera. We are up to the 
minute on this. We are--our law is up-to-date, and we are being 
distracted by those who tell us all these terrible and 
difficult problems of society have to be run through the 
military.
    Mr. Johnson. Okay.
    Mr. Goodlatte. I want to----
    Mr. Johnson. Yes. Can I ask the others to just say ``yes'' 
or ``no'' whether or not----
    Mr. Goodlatte. Very, very briefly. I know that Ms. 
O'Connell has to get to my alma mater to attend a graduation, 
and I am all in favor of people attending Washington and Lee 
graduation, so if you'll be brief.
    Ms. O'Connell. I would love to pass on to my nephew your 
good wishes. Thank you, Mr. Chairman.
    Mr. Goodlatte. You may do so.
    Ms. O'Connell. Washington and Lee.
    Mr. Engel. I think our Constitution has served us well. I 
don't think there is an amendment necessary in this area. I 
think, with respect to the case of the Boston Marathon bomber, 
I don't see any statutory amendments or new statutes that are 
needed to deal with that problem.
    Mr. Johnson. Thank you.
    Mr. Wittes. I agree with that, with the caveat that, as my 
earlier exchange with Chairman Goodlatte reflects, I do think 
it is well worth Congress looking at the question of what it 
can do around the public safety exception and what it can do 
around the possibility of a delay in presentment.
    Mr. Chesney. I agree with what Mr. Wittes just said.
    Mr. Johnson. Thank you.
    Mr. Goodlatte. I thank you all. I thank the gentlemen from 
Georgia and the gentlemen from Virginia. This has been a very 
thoughtful and good discussion, and I think there are some 
actions that will possibly come out of this, but it has 
definitely been a good review of the circumstances that we are 
in. And with that, we will conclude today's hearing and thank 
all of our witnesses for attending, and without objection, all 
Members will have 5 legislative days to submitted additional 
written questions for the witnesses or additional materials for 
the record, and those additional written questions, we hope you 
will answer those as promptly as possible.
    And this hearing is adjourned.
    [Whereupon, at 12:25 p.m., the Committee was adjourned.]

                                 
