[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]
[H.A.S.C. No. 111-81]
PROSECUTING LAW OF WAR VIOLATIONS: REFORMING THE MILITARY COMMISSIONS
ACT OF 2006
__________
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
HEARING HELD
JULY 16, 2009
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HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Eleventh Congress
IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina HOWARD P. ``BUCK'' McKEON,
SOLOMON P. ORTIZ, Texas California
GENE TAYLOR, Mississippi ROSCOE G. BARTLETT, Maryland
NEIL ABERCROMBIE, Hawaii MAC THORNBERRY, Texas
SILVESTRE REYES, Texas WALTER B. JONES, North Carolina
VIC SNYDER, Arkansas W. TODD AKIN, Missouri
ADAM SMITH, Washington J. RANDY FORBES, Virginia
LORETTA SANCHEZ, California JEFF MILLER, Florida
MIKE McINTYRE, North Carolina JOE WILSON, South Carolina
ROBERT A. BRADY, Pennsylvania FRANK A. LoBIONDO, New Jersey
ROBERT ANDREWS, New Jersey ROB BISHOP, Utah
SUSAN A. DAVIS, California MICHAEL TURNER, Ohio
JAMES R. LANGEVIN, Rhode Island JOHN KLINE, Minnesota
RICK LARSEN, Washington MIKE ROGERS, Alabama
JIM COOPER, Tennessee TRENT FRANKS, Arizona
JIM MARSHALL, Georgia BILL SHUSTER, Pennsylvania
MADELEINE Z. BORDALLO, Guam CATHY McMORRIS RODGERS, Washington
BRAD ELLSWORTH, Indiana K. MICHAEL CONAWAY, Texas
PATRICK J. MURPHY, Pennsylvania DOUG LAMBORN, Colorado
HANK JOHNSON, Georgia ROB WITTMAN, Virginia
CAROL SHEA-PORTER, New Hampshire MARY FALLIN, Oklahoma
JOE COURTNEY, Connecticut DUNCAN HUNTER, California
DAVID LOEBSACK, Iowa JOHN C. FLEMING, Louisiana
JOE SESTAK, Pennsylvania MIKE COFFMAN, Colorado
GABRIELLE GIFFORDS, Arizona THOMAS J. ROONEY, Florida
NIKI TSONGAS, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
GLENN NYE, Virginia
CHELLIE PINGREE, Maine
LARRY KISSELL, North Carolina
MARTIN HEINRICH, New Mexico
FRANK M. KRATOVIL, Jr., Maryland
ERIC J.J. MASSA, New York
BOBBY BRIGHT, Alabama
SCOTT MURPHY, New York
DAN BOREN, Oklahoma
Erin C. Conaton, Staff Director
Paul Oostburg Sanz, General Counsel
Roger Zakheim, Professional Staff Member
Caterina Dutto, Staff Assistant
C O N T E N T S
----------
CHRONOLOGICAL LIST OF HEARINGS
2009
Page
Hearing:
Thursday, July 16, 2009, Prosecuting Law of War Violations:
Reforming the Military Commissions Act of 2006................. 1
Appendix:
Thursday, July 16, 2009.......................................... 35
----------
THURSDAY, JULY 16, 2009
PROSECUTING LAW OF WAR VIOLATIONS: REFORMING THE MILITARY COMMISSIONS
ACT OF 2006
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
McKeon, Hon. Howard P. ``Buck,'' a Representative from
California, Ranking Member, Committee on Armed Services........ 2
Skelton, Hon. Ike, a Representative from Missouri, Chairman,
Committee on Armed Services.................................... 1
WITNESSES
Black, Lt. Gen. Scott C., USA, The Judge Advocate General, U.S.
Army........................................................... 4
MacDonald, Vice Adm. Bruce E., USN, The Judge Advocate General,
U.S. Navy...................................................... 5
Rives, Lt. Gen. Jack L., USAF, The Judge Advocate General, U.S.
Air Force...................................................... 5
Walker, Brig. Gen. James C., USMC, Staff Judge Advocate to the
Commandant, U.S. Marine Corps.................................. 7
APPENDIX
Prepared Statements:
Black, Lt. Gen. Scott C...................................... 39
MacDonald, Vice Adm. Bruce E................................. 45
Rives, Lt. Gen. Jack L....................................... 51
Walker, Brig. Gen. James C................................... 57
Documents Submitted for the Record:
[There were no Documents submitted.]
Witness Responses to Questions Asked During the Hearing:
Dr. Snyder................................................... 65
Questions Submitted by Members Post Hearing:
Mr. Skelton.................................................. 69
PROSECUTING LAW OF WAR VIOLATIONS: REFORMING THE MILITARY COMMISSIONS
ACT OF 2006
----------
House of Representatives,
Committee on Armed Services,
Washington, DC, Thursday, July 16, 2009.
The committee met, pursuant to call, at 2:04 p.m., in room
2118, Rayburn House Office Building, Hon. Ike Skelton (chairman
of the committee) presiding.
OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM
MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES
The Chairman. The committee will come to order.
Since the 109th Congress deliberated and passed the
Military Commissions Act of 2006, I have argued that the most
important task before us has been to design a system that would
withstand legal scrutiny and would be found to be
constitutional. I doubted at the time and still believe that
the current system could survive a Supreme Court review. By my
estimation, there are at least seven potential defects in this
act.
First, the Supreme Court has already held in Boumediene
that the Military Commissions Act constitutionally stripped
Federal courts of jurisdiction over habeas corpus.
Relatedly, the act may violate the exceptions clause under
Article III of the Constitution by impermissibly restricting
the Supreme Court's review.
Third, it is questionable whether the Supreme Court would
uphold a system that purports to make the President the final
arbiter of the Geneva Convention.
Fourth, the provisions regarding the coerced testimony may
be challenged under our Constitution.
Fifth, the act contains very lenient hearsay rules which
rub up against the right of the accused to confront witnesses.
Sixth, the act may be challenged under equal protection and
other Constitutional grounds for how it discriminates against
the detainees for being aliens.
Lastly, Article I of the Constitution prohibits ex post
facto laws; that is, what this act may have created.
At the President's instruction, the Administration is
conducting an inter-agency review of detainee policy. This
inter-agency task force should be recommending reforms to the
military commissions law. Already, the Administration has
commented on the suggested amendments to the Military
Commissions Act that our colleagues in the Senate Armed
Services Committee include in their National Defense
Authorization bill; and I invite each of our witnesses to
provide their assessment of whether the Senate bill has gone
far enough to correct the potential constitutional infirmities
or not.
The bottom line is that we must prosecute those who are
terrorists with the full force of the law, but we must also
make sure that the convictions stick. Certainty of convictions
must go hand in hand with tough prosecutions. And being a
former prosecutor in my home county, the worst thing that one
anticipates or could anticipate is a Supreme Court freeing
someone that a jury in your home county convicted. Permitting
hardened terrorists to escape jail time because we didn't do
our jobs here in Congress to fix this act would be a travesty
of justice.
Now, I turn to my good friend and colleague, the gentleman
from California, Mr. McKeon.
STATEMENT OF HON. HOWARD P. ``BUCK'' MCKEON, A REPRESENTATIVE
FROM CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. McKeon. Thank you, Mr. Chairman. Thank you for holding
a hearing on such an important topic: prosecuting terrorists
for law of war violations through the Military Commissions Act
of 2006, or MCA.
Let me also begin by welcoming to the committee our
witnesses, the Judge Advocate Generals for each of the
services. Gentlemen, good afternoon. And thank you for being
here.
Before we jump into the heart of today's hearing, the
Military Commissions Act, I just want to note that we have
another hearing next week with senior Department of Defense and
Department of Justice officials on the Administration's overall
detainee policy. At that hearing, I look forward to discussing
the President's plan for a preventive detention system and the
findings of the Detainee Task Force on a detainee policy which,
pursuant to the executive orders, is due to complete its work
next week.
In my view, the 2006 MCA was a fair piece of legislation
and a product of careful negotiations between the House,
Senate, and the previous Administration. In that light, I
welcome President Obama's decision to use military commissions
as a tool for prosecuting those who violate the laws of war.
In his speech at the National Archives on May 21, the
President recognized correctly that we are at war with al Qaeda
and its affiliates, and that commissions are an appropriate
forum for prosecuting those who violate the laws of war.
The President rightly noted that military commissions have
a long history of protecting sensitive intelligence sources and
methods, while allowing for the introduction of evidence unique
to battlefield contingencies.
It is worth recalling that the 2006 MCA passed the House
and Senate by a comfortable vote with bipartisan support. Yet
the 2006 MCA, like any other law, is not perfect and could use
improvement, especially now that we have the benefit of seeing
the system in practice.
I hope that during today's hearing, each of you will share
your independent view on the legislation proposed by the Senate
Armed Services Committee (SASC) to amend the 2006 MCA. I
understand the committee language is the product of a
bipartisan effort and enjoys the support of Senators McCain and
Graham, but I would like to hear if you have any suggestions or
concerns with respect to the proposal and whether you feel
there are any steps that Congress should take to ensure we have
an effective military commissions system.
Finally, I would also like to ask you to hear your thoughts
on the Administration's proposed changes to the SASC language.
After looking at both the Senate and White House proposals,
I have a number of questions and concerns I hope you will be
able to address today. My first concern is forum choice. If we
are going to utilize the military commissions, we need to
ensure that any changes to the framework make the commissions
more efficient and bring swift justice to terrorists.
While the commissions have only convicted three
individuals, at least 19 other detainees have charges currently
pending and at least another 40 could be charged as well.
Let me be clear on one point. I think we should use the
military commissions to try all detainees who have violated the
laws of war.
I also have grave concerns about the President's preference
to use Article III courts to try some of the detainees
currently being held in Guantanamo Bay. In my view, trials of
terrorists need to stay within the paradigm of armed conflict.
The required procedures and rules of evidence in Federal courts
are not fit for trials in the armed conflict paradigm. Most
importantly, prosecuting some detainees in Federal courts and
others in commissions, in the absence of clear criteria guiding
this decision, will lead to the perception that commissions are
an inferior system or a kangaroo court. This is an unacceptable
outcome and dishonors the uniformed personnel working on
military commissions.
A related concern that I hope you will discuss is where we
intend to hold these commissions. I would like to know how, if
at all, the MCA and rules for military commissions may need to
change if the Administration decides to hold commissions within
the continental United States.
I look forward to your testimony, and hope that the
discussion we have today will help us work with the Senate to
improve the 2006 MCA so that the Administration will use the
MCA framework to bring terrorists to justice. I yield back.
The Chairman. I thank the gentleman.
Before us today our witnesses are, from my left to right,
Lieutenant General Scott Black, Judge Advocate General, United
States Army; Vice Admiral Bruce MacDonald, Judge Advocate
General of the United States Navy; Lieutenant General Jack--is
it Reeves or Rive?--Rives, Lieutenant General Jack Rives,
United States Air Force Judge Advocate General; and Brigadier
General James Walker, United States Marine Corps, Judge
Advocate to the Commandant of the Marine Corps.
We thank you gentlemen for being with us today. We will go
down the line.
General Black, you are on.
STATEMENT OF LT. GEN. SCOTT C. BLACK, USA, THE JUDGE ADVOCATE
GENERAL, U.S. ARMY
General Black. Thank you, Mr. Chairman, Ranking Member
McKeon, members of the committee. I would like to thank you for
the opportunity to appear here today for the committee's
consideration of these important issues. I join in endorsing
and encouraging continued congressional and Administration
efforts to reform military commissions for the trial of
unprivileged belligerents accused of violations of the law of
war during our country's ongoing conflict against those who
planned and conducted the attacks against us on September 11,
2001, as well as those detained during the conduct of
associated military and intelligence operations.
I am confident that this reform effort will result in a
system that meets the standards for military commissions
described by the Supreme Court in Hamdan v. Rumsfeld. I am
similarly confident that such reforms of military commissions
will satisfy any outstanding concerns relative to our demand
for a system characterized by our proper devotion to standards
of due process recognized under the law of war, our commitment
to ensuring fair treatment of the accused, and reliable results
in any commission proceeding.
I offer the following comments in relation to a few
specific proposals found in the Senate version of the act.
First, I understand that the Administration favors adoption
of a voluntariness standard on the admissibility of statements
into evidence. I acknowledge and respect the prerogative of the
Administration to resolve policy on all such matters, but
maintain my recommendation against adoption of a voluntariness
standard and in favor of a reliability standard where
voluntariness is a relevant factor in resolving whether
statements warrant admission at a commission trial.
Second, I support the Administration's proposal to adopt
the most recent developments in federal practice under the
Classified Information Procedures Act for application to trial
by military commissions in this context.
Third, I disagree with the Senate's proposal to establish
the Court of Appeals for the Armed Forces as an intermediate
court of appeals for those convicted by military commissions. I
favor instead the Administration proposal to modify the
responsibility and authority of the Court of Military
Commission Review by infusing that court with the same
responsibility and authority of our service courts of criminal
appeals under Article 66 of the Uniformed Code of Military
Justice.
I believe you have a copy of the balance of my full
statement for inclusion in the record, Mr. Chairman.
As an aside, I would like to offer my thanks to this
committee for their hard work and tremendous support for
soldiers and their families. I can assure you that we are
deeply grateful for both. And with that, sir, I look forward to
your questions.
[The prepared statement of General Black can be found in
the Appendix on page 39.]
The Chairman. Admiral, please.
STATEMENT OF VICE ADM. BRUCE E. MACDONALD, USN, THE JUDGE
ADVOCATE GENERAL, U.S. NAVY
Admiral MacDonald. Thank you, Mr. Chairman. Chairman
Skelton, Ranking Member McKeon, and members of the committee,
thank you very much for providing me the opportunity to present
my views on military commissions.
In 2006, Congress enacted the Military Commissions Act.
This act established the jurisdiction of commissions, set
baseline standards for their operation, and prescribed
substantive offenses. The act also authorized the Secretary of
Defense to promulgate procedural and evidentiary rules to be
used in military commissions and to establish the elements of
the substantive offenses. Those rules were completed in early
2007, and additional rules were recently promulgated by the
Secretary of Defense on May 15 of this year and became
effective on July 13th of this year.
The current framework, in my opinion, provides an
appropriate balance that ensures important rights and
protections for an accused while also providing the government
with an effective means of prosecuting an accused before a
military commission. Nevertheless, there is room for
improvement in a number of areas. Some examples include the
rules relating to classified evidence, the admissibility of
hearsay evidence and statements of the accused, information
that must be disclosed to the accused, and the type of review
to be applied during the appellate process.
I recently testified before the Senate Armed Services
Committee on its proposal that would, in my view, fix many of
these issues, but I recommended that additional changes be
considered. Regardless of the method used to revise the
Military Commissions Act, the first step toward the needed
changes is establishing an open dialogue to share views on
these issues.
In September 2006, when we last testified before this
committee, it was the view of the Judge Advocates General that
whatever process was eventually established should be tested
against two standards: First, it must be consistent with our
Nation's notions of justice and fairness. Second, we must be
willing to have our own service members tried under the same
standards and procedures that we apply. Those standards should
continue to inform our discussion today as we consider changes
to the Military Commissions Act. For that reason, I commend
your efforts and thank you very much for the opportunity to
appear before you this afternoon, and I look forward to
answering your questions.
[The prepared statement of Admiral MacDonald can be found
in the Appendix on page 45.]
Mr. Ortiz [presiding]. General Rives.
STATEMENT OF LT. GEN. JACK L. RIVES, USAF, THE JUDGE ADVOCATE
GENERAL, U.S. AIR FORCE
General Rives. Mr. Chairman, Ranking Member McKeon, members
of the Armed Services Committee, good afternoon, and thank you
for this opportunity to testify today on the subject of
military commissions. I would like to emphasize that the views
expressed in my testimony are my own and do not represent the
views of the Department of Defense or the Administration.
Military commissions have a long history in this country as
a mechanism to address possible violations in the law of war.
Military commissions were used extensively during and after
World War II, and they were again called upon in the aftermath
of the September 11, 2001 attacks. After action by the
Executive and review by the Supreme Court, the Congress acted
in 2006 to pass the Military Commissions Act, providing the
President statutory authority to establish military commissions
to try traditional offenses as codified in the Military
Commissions Act.
The effort to make military commissions more fair and
credible enhances national security by providing effective
alternatives to try international terrorists who violate the
law of war. Periodic review of the military commissions
legislation and procedures is vital to an effective and fair
commission process.
As required by the Military Commissions Act, the Secretary
of Defense notified the Congress in May of this year of
proposed changes to the Manual for Military Commissions
affecting procedures used by the military commissions. Those
amendments will improve the military commissions process.
As a result of those changes, statements obtained using
interrogation methods that constitute cruel, inhuman, and
degrading treatment cannot be admitted as evidence at trial.
The burden of proof on admissibility of hearsay will shift to
the party that offers it. The burden will no longer be on the
party that objects to hearsay to disprove its reliability.
The accused will have greater latitude in selecting defense
counsel. In situations where the accused elects not to testify
but offers his own prior hearsay statements, the military judge
will no longer be required to instruct the members to consider
the accused's decision not to be cross-examined on the hearsay
statements and that the statements are not sworn. Any such
instruction will now be left to the discretion of the military
judge.
Military judges may establish the jurisdiction of their own
courts. Under prior practice, jurisdiction for a military
commission to hear a case was established by a prior combatant
status review tribunal.
Further review, of course, is ongoing within the
Administration. Changes to the Military Commissions Act of 2006
have also been advanced by the Senate Armed Services Committee.
Some of the recommendations include making the changes that I
have just mentioned statutory. Additional changes are also
appropriate. I highlight two for your consideration.
First, reforms in the rules for handling classified
information would have significant impact. Procedures that
follow the Classified Information Procedures Act (CIPA) would,
with appropriate modification, balance the government's need to
protect classified information with the defendant's interests.
The substantial body of that case law that has developed over
the years would provide valuable guidance to lawyers and the
commissions.
Next, expanding the scope of appellate review to include
review of factual matters, as the service courts of criminal
appeals enjoy under Article 66 of the Uniform Code of Military
Justice, is desirable. Also retention of the current Court of
Military Commissions Review, which is comprised in whole or in
part of those with the experience as military appellate judges
who are comfortable reviewing cases for both factual and legal
sufficiency, is logical and efficient.
I encourage you to closely consider these revisions, and I
stand ready to assist, as appropriate, in your efforts. You
have a copy of my full statement for inclusion in the record.
Again, I thank you for the opportunity to testify, and I look
forward to answering your questions.
[The prepared statement of General Rives can be found in
the Appendix on page 51.]
Mr. Ortiz. General Walker.
STATEMENT OF BRIG. GEN. JAMES C. WALKER, USMC, STAFF JUDGE
ADVOCATE TO THE COMMANDANT, U.S. MARINE CORPS
General Walker. Thank you, Chairman Skelton, Ranking Member
McKeon, and honorable members of the Armed Services Committee.
Good afternoon. I appreciate the opportunity, as the other
witnesses, to come before you today and testify regarding the
military commissions.
The military commissions over the past few years have
demonstrated the difficult balance between individual due
process, fundamental fairness, and our national security
interests.
I support the majority of the amendments to the Military
Commissions Act proposed by Senate Bill 1390, because they will
help maintain that difficult balance. I concur with the
comments of the other witnesses as to specific provisions and,
in the interest of time, will not repeat those comments.
The procedures and rules that we adopt for the military
commissions are important to our Nation and also to all current
and future members of the Armed Forces. As a Nation, we have
forces deployed around the world advancing the rule of law. We
must demonstrate our commitment to fairness and those
guarantees indispensable for civilized nations. We must also
remain cognizant of the fact that how we administer the
military commissions can, and likely will, impact how U.S.
forces will be treated by other nations in future conflicts at
a time unknown.
I thank you for your opportunity to express my views on
these difficult issues, and I look forward to answering your
questions.
[The prepared statement of General Walker can be found in
the Appendix on page 57.]
Mr. Ortiz. Thank you very much. Not being a lawyer, and
reading through some of the information, I just have a few
questions. I am going to allow and give time to my colleagues
to ask questions, but my question that I want to ask from all
of you is: Why is providing material support for terrorism a
crime subject to prosecution in military commissions, since it
has not traditionally been an offense under the law of war? And
maybe you could explain to me a little bit, enlighten me on
why.
Admiral MacDonald. Sir, I can--I will start off. We
actually can find material support for terrorism in the law of
war. And, in fact, we have one military commissions case, the
Hamdan case, where Judge Allred in that case actually found--
and in his opinion upholding material support, found that
particular crime in the law of war and traced it back to the
Civil War. So we do have it extant in our own law of war
jurisprudence.
General Rives. Congressman, I agree that material support
for terrorism or terrorist organizations remains an appropriate
charge for military commissions. The law of war is prohibitive
law. If it does not prohibit, then it permits. And there is
history behind having such an offense as material support as a
chargeable offense for a military commission.
I also note that in the Military Commissions Act of 2006,
Congress provided that the crimes in section 950(v) codify
offenses that have been traditionally triable by military
commissions.
As Admiral MacDonald has mentioned, material support has
been specifically charged; there have been objections to it,
but judges have ruled. And I believe the proper course of
action is to let judges consider the arguments in specific
cases at the trial and, as appropriate, appellate levels to
determine the continuing viability of material support as an
offense.
General Black. Mr. Ortiz, I agree with the comments of my
colleagues already, and I would add just a couple of points.
One, of course, the language is already in the SASC bill. But,
two, I would rather litigate it in trial than just forego the
opportunity by excluding the offense in the current legislative
package. So I would argue in favor of including it.
General Walker. Sir, I agree with the other witnesses. I
think, first of all, there is support in international law that
the law of war does support the charge of material support to
terrorism. And we have at least one experience with the courts
at Guantanamo where a judge has so held that. I think this is
one of those issues that we will never be able to say for
absolute certainty, is it encompassed in the law of war?
Because, of course, those specific words aren't there. This is
the exact issue that is the subject of litigation that we
should litigate, and there is an adequate basis under law to
proceed with that charge.
Mr. Ortiz. Thank you. I have another question. Should
detainees who allegedly committed law of war violations when
they were minors, should they be prosecuted under the Military
Commissions Act of 2006 or a successive legal framework? If
not, how would you suggest that they be adjudicated? I am
talking about minors, you know, under the----
General Black. Sir, I'll start. The factor of age is just
that, a factor that should be considered by the trier of fact
in the military commissions. Well, first, by the convening
authority as they determine whether to refer charges to trial;
and then, second, as a factor to be considered by the trier of
fact if a case is brought forward. So, yes.
Admiral MacDonald. Sir, there--again, there is history in
the law of war that military commissions are an appropriate
forum to try minors. And I would agree with General Black.
Certainly the convening authority in the case can take a look
at the specific facts and circumstances, including the age of
the minor, when making that decision whether or not to refer
charges to a military commission in a particular case; also,
the trier of fact, when they are determining whether or not
they have jurisdiction over a minor. This will go to that
definition of unprivileged enemy belligerent that we have
talked about in our opening statements.
That trier of fact can listen to arguments on both sides
and determine whether or not a minor actually fits into that
jurisdictional definition.
General Rives. And, Congressman, I also agree that the
issue of whether to hold minors responsible as an adult in a
criminal matter involves a multifaceted approach.
First, consideration by the convening authority of whether
to even charge when considering all the facts and
circumstances. Then the military judge has a role to play based
on the legal standards. And finally, the trier of fact has
decisions to make that can be affected by the age of the
individual accused.
The law of war does not speak to the issue of minors as
combatants, except that states can create special safety
protections for civilians under the age of 15. And that is
under the Geneva Convention IV. And also, states are required
to take precautions when persons under the age of 18 are
recruited into an armed force. So those are considerations, but
there is no clear determination. It would depend on the facts
of the given case.
General Walker. Sir, I believe the most positive point
under the Military Commissions Act is that there are numerous
opportunities and safeguards within the existing provisions to
consider the act of the defendant as one of the factors to
whether he would bear criminal responsibility for his act, much
as we do in criminal courts within the United States. So I do
not feel there is a need to automatically bar prosecutions
under the Military Commissions Act based on the age.
Mr. Ortiz. Thank you so much. Let me yield to my good
friend from California, Mr. McKeon.
Mr. McKeon. Thank you, Mr. Chairman.
The Administration has expressed a preference for trying
detainees in Article III courts. Do you share the same
preference?
Admiral MacDonald. Sir, I don't share a preference. I
believe that whatever we come up with in terms of modifications
to the current Military Commissions Act, and as I said in my
opening statement, we have to make sure and we have to leave
here at the end of the day believing that this is a fair and
just system that can stand on its own, and that we ought to be
willing to subject any detainee, any terrorist, to the military
commission process.
Now, I understand that the Administration may have, and we
may have, some reasons for looking towards Article III courts
that may cause us in a particular case to defer to an Article
III prosecution. But I think, at the end of the day, we need to
build a system that can stand on it own.
General Rives. I agree, Congressman. In my view, the
military commissions process is historically tested. It can be
a very fair process. The military commissions that evolved
through the Military Commissions Act of 2006 is such a fair
process. It currently is being reviewed to make it even more
so; to make for transparency, to ensure the rights of an
accused, to ensure that it meets, easily, international
standards.
So my preference would be, get the military commissions
right, do the prosecutions under the military commissions
process. Of course, I have no problem if a policy call is made
in a given case to prosecute someone in an Article III court.
That does come down to a policy call. But the important factor
is for people to understand that military commissions are fair,
they meet international standards, and they are not in any way
something just to fall back on because we want to assure a
certain result. The military commissions process is fair, and
the only guarantee is we are going to provide a fair process.
The history through World War II was the almost 2,500
people who were prosecuted in the European and Pacific theaters
during and immediately after World War II had a conviction rate
of 85 percent. The cases we have already had, we have seen that
people are not necessarily being convicted of all charged
offenses, and the punishment that the members decide is
appropriate has not been as severe as some people thought would
happen.
So the military commissions process is very fair, and it
should be given a chance to work out. I do support the efforts
of the Administration and Congress to make it even more fair
than it has been.
General Black. Sir, I agree with the comments of my
colleagues. I would only add that the process here has to be
perceived as fair and just, and there should not be a
preference for any one system over the other. Article III
courts are just another tool in the kit bag that is available
to our country for resolving these issues and these crimes.
General Walker. I believe we are fortunate to have two
forums in which we can charge these offenses, both which meet
the international mandates, meet the law of war, and meet those
fundamental principles of justice. It is a policy call which
forum is chosen. I think we can make both work to achieve our
Nation's goals.
Mr. McKeon. I am not trying to get you to talk against the
Administration. That would be--You know--I understand the
situation. My concern is that if you decide to send some to
Article III courts and some to military courts, what--is there
a judgment made prematurely that indicates that one is less
guilty than another or goes to one court over--you know, how do
you determine which court would handle? That is one of the
concerns I have on that.
Are you concerned that this process will buttress the view
that military commissions are a second-class system? I think
you probably addressed that, and I don't want to put you in a
bad light with the Administration. But we don't want to come up
with a system where one is considered a kangaroo court and one
is of a higher, better nature, more fair. That is, I think, the
thing that we are grappling with.
General Rives. Congressman, I agree. An Article III court
clearly gives the full panoply of constitutional and other
rights to individual accuseds. The military commissions are
designed for a specific purpose. A part of it is based on the
very function of a military commission, which is based not on
United States constitutional standards for civilian criminal
defendants, but the battlefield. Soldiers on the battlefield
are not law enforcement specialists. They are not acquiring
evidence in strict conformance with constitutional standards
and judicial rulings that provide protections.
So the point is the military commissions need to be clearly
fair and well within international standards. I am satisfied
that they are, and that the additional protections that will be
provided will make them even more so. They should not be viewed
as second-class justice.
On the other hand, as we have said and you have said, it
comes down to a policy call. Should the Administration decide
in a given case to use Article III courts, that is totally
appropriate, but they would need to explain why that is the
preferred venue in a given case.
Admiral MacDonald. Congressman, in the President's National
Archive speech he used the phrase ``whenever feasible'' in
talking about the distinction between going to an Article III
court and a military tribunal, a military commission. And we
know that the Administration is working through a set of
criteria--evaluation criteria to do that, to try to determine.
So I think to answer your question, the proof will be--you
know--when we understand the criteria that will be applied to
make that determination, and then take a look at what cases are
being referred to Article III and what cases are being referred
to military commissions.
Mr. McKeon. And, finally, do you think it makes a
difference whether the commissions are held at Gitmo or in the
continental U.S.?
General Black. No, sir, I don't. I believe that geography
doesn't matter. These are law-of-war-based criminal
prosecutions, and geography does not affect the way we should
draft the rules to accomplish the process.
Admiral MacDonald. Congressman, I think this comes down to
what do you believe these commissions are? And there are some
that believe that these are law enforcement actions; that
terrorists ought to be tried under a law enforcement model.
That leads you into U.S. criminal law and the Constitution.
There are others that believe, as I think we all do, that
we are at war and that the law of war applies, and that you
look to the law of war to find the substantive law that should
be applied. And looking at the Military Commissions Act with
the SASC amendments, we believe that obviously with some--I
think we have all talked about some improvements, but we
believe it meets that law of war standard, and it meets it at
Guantanamo and it would meet it here in the United States.
General Rives. And Congressman, as I understood your
question it is: Does it matter substantively and procedurally
whether we try cases by military commissions within the United
States?
My answer is I don't believe it should matter. We already
have a ruling from the Supreme Court in the Boumediene case
saying that the constitutional right for habeas corpus does
apply to the noncitizens who are in Guantanamo Bay.
There could be other judges who may determine that because
we are in the United States, there are some additional rights
that may accrue to someone being prosecuted even by a military
commission. My view is that that should not matter and it would
not matter. But we can't be sure how an individual judge or,
ultimately, a case on appeal may be decided.
Admiral MacDonald. I think, sir, we can also look at
another case, another Supreme Court case, and it is the Hamdi
case. Hamdi was a U.S. citizen brought from Afghanistan and
brought into the Navy brig down in Charleston. So we had a U.S.
citizen in the United States. And Justice O'Connor, in finding
that Hamdi was entitled to a habeas proceeding, and talking
about the kind of proceeding, what kind of proceeding that
would be, she actually looked to the law of war. And she looked
to Article five of the Third Geneva Convention. Those are
Article five tribunals that we in the military are very used to
conducting.
These are the status determinations on the battlefield when
you get someone, take them off the battlefield, you convene an
Article five tribunal to determine their status. Are they a
lawful combatant, an unlawful combatant? Are they a privileged
civilian?
And she specifically pointed towards the law-of-war model
and said that might be a suitable way to determine status.
So if she was--if the Supreme Court was willing to do that
for a U.S. citizen in the United States and apply this law-of-
war detention review process, then we believe that they are
likely to do the same thing. Nothing is a certainty, but they
are likely to do the same thing when they evaluate the
commissions process and the due process accorded to commissions
here in the United States.
General Walker. Mr. Chairman, I believe there are--the
precedents that we have for the extension of constitutional
rights to detainees have been limited. In the cases where the
courts have had the opportunity, as Admiral MacDonald
mentioned, they have chosen a limited application of the
traditional constitutional protection. And I believe that is a
correct application of the law, because we should go by the law
of war.
However, I have to say that if the commissions were
geographically sited in the United States, I think it would
increase the possibility that a particular jurisdiction or a
Federal court could choose to broaden that scope of
constitutional protections.
Mr. McKeon. Thank you. Thank you, Mr. Chairman.
Mr. Ortiz. Let's see if we can get some clarification on
something. Now, while each of you support prosecution in
military commissions, you do not oppose prosecution of
detainees in Federal civilian courts. Am I assuming correct?
General Black. That is correct, sir.
Admiral MacDonald. Yes, sir.
Mr. Ortiz. All of you?
General Walker. Aye, sir.
General Rives. I agree.
Mr. Ortiz. Thank you. Mr. Taylor.
Mr. Taylor. Mr. Chairman, I am going to yield to Mr.
Murphy.
Mr. Murphy of Pennsylvania. Thank you, Mr. Chairman. And
thank you, Mr. Taylor.
Gentlemen, thank you for your service to our country.
I would like to put you on the spot. I know my colleague on
the other side of the aisle, Representative Rooney, you know--
he served as a young captain, a judge advocate in that First
Calvary Division, and I was a young captain in the 82nd
Airborne Division. Who would be a better judge advocate? Who
would you rather have on your team?
But I won't put you on the spot because we all know that
the Airborne leads the way. So I will get right to my question.
Gentlemen, I think it is important that we are having this
hearing today to try to figure out the details of how we can
constitutionally and fairly put these suspected terrorists on
trial in a way that is consistent with our values while still
keeping our service members and our families here in America
safe. As a former judge advocate and a constitutional law
professor at West Point, to many of us this is very personal.
The Administration has yet to formally comment on the exact
definition of an enemy combatant, and clearly the Bush
Administration, in my opinion, stretched the boundaries of what
exactly constitutes an enemy combatant.
Back in 2004, a Deputy Associate Attorney General argued in
Federal district court that an old lady in Switzerland, who
wrote a check to a charity that, without her knowledge, passed
those funds on to an al Qaeda organization, could be held as an
enemy combatant. When asked to explain this, the representative
for the Bush Administration said that, under the 2001
Authorization for the Use of Military Force, the government
could hold the woman indefinitely, and that someone's intention
is clearly not a factor that would disable detention.
The Military Commissions Act states that, ``To be declared
an unlawful enemy combatant, an individual must have purposely
and materially supported hostilities against the United
States.'' But the 2001 Authorization for Use of Military Force
makes no such distinction, merely leaving the decision up to
the President as to whether someone engaged in or supported
hostilities against the United States.
So my question to the panel: In your opinion, in your view,
does mens rea--obviously the mental intent--should it play a
key role in determining who the government should and should
not classify as an enemy combatant? Gentlemen, I appreciate
your answers.
General Black. Mr. Murphy, thank you. And thank you and Mr.
Rooney for your service in my corps. I won't take sides with
the respective divisions that you both served in. They are both
wonderful organizations and produce great officers and
soldiers.
Now, with respect to your question, the objective here
ought to be as narrowly and carefully tailored a definition as
we can possibly come up with. And, yes, mens rea should be part
of the package.
Purposefully and materially supporting hostilities is a
definition we can work with. It does provide the sufficient--
the element of mens rea, and I would support that. We look
forward to working with the Administration and continuing to
work with the Administration to refine the definition to get to
exactly the end state that we need in this regard.
Mr. Murphy of Pennsylvania. Thank you.
Admiral MacDonald. Congressman, I agree completely with
that. Mens rea should be an element of any of the crimes, the
material support crime, the conspiracy, aiding and abetting.
And also in terms of detention, it should be an element as well
before we detain.
General Rives. Mr. Murphy, as you were speaking, I was
thinking I was glad you are not my law professor.
Mr. Murphy of Pennsylvania. I did lecture at the Air Force
Academy in Colorado Springs, but only for a few weeks.
General Rives. Well, you are welcome to come back anytime,
and I won't be in your class.
But I agree that we need to be careful with how we define
these terms. Lawyers know you have got a lot of discretion in
how you charge, but I believe we should only charge those who
we believe really committed a criminal offense, one that is
punishable for military commissions purposes under the laws of
war.
Mens rea really is a critical element in ultimately getting
a conviction. We shouldn't charge someone if we don't believe
we are likely to get a conviction, if we don't believe the
evidence is there. And if we don't believe we have good
evidence of mens rea, we should not be charging an individual.
We should not charge the little old lady in Switzerland who
innocuously thought she was donating money to an organization
that helps orphans. But if the same little old lady knew that
the purpose of her money was ultimately to help someone
accomplish a terrorist goal, we can properly charge her, we can
properly prosecute her. And whether she is convicted or not
depends on how the proof is given in the trial.
Mr. Murphy of Pennsylvania. And I agree with that
assessment, absolutely. If she knows that is where the money is
going, we absolutely should prosecute her to the fullest extent
of law. General?
General Walker. I believe that we should consider intent or
mens rea as we look at these crimes under the law of war, just
as those elements have been traditional elements of the crimes
under the law of war throughout history. We see--I see no
reason we would differentiate now.
Mr. Murphy of Pennsylvania. Thanks, General. And I see my
time is up. I appreciate the time. Thank you, Mr. Chairman.
Mr. Ortiz. Mr. Bartlett.
Mr. Bartlett. Thank you very much.
Gentlemen, are there world courts where these prisoners
might be tried?
General Walker. There could be--international tribunals
would be a possible forum that could try these offenses. A good
example of a similar tribunal would be the ITFY, the
International Tribunal for Former Yugoslavia. That would have
been a forum; I suppose still could be a forum. I am not aware
of any standing body that could handle these cases.
General Black. Nor am I, sir. I am not aware of any
existing forum that has the jurisdiction to handle these cases.
Mr. Bartlett. General Rives, you mentioned that we wanted
the military commissions to be considered fair and creditable.
I gather that you said that because they are not always
considered fair and creditable.
When you made that statement, I was reminded of the counsel
that my mother gave me and your mother probably gave you: that
you shouldn't borrow trouble. We have enough trouble without
borrowing trouble.
When I mention military commission or military tribunal--
and I have tried this a lot of times--when I mention that to
one of my constituents, their reaction is always my reaction: a
banana republic, a trial at midnight, execution at dawn.
I voted against this act because I didn't think we needed
to borrow that trouble. If these people need to be tried, there
are international courts that can try them. And I don't know
why we are doing this. We have enough trouble to deal with
without borrowing this additional problem.
General Rives. Well, interestingly, Mr. Bartlett, the
trials at Nuremburg after World War II are often held up as the
gold standard, when in fact if people dug into exactly what
happened at Nuremburg, there was no specified standard of
proof; the accused's presence was not even required; an accused
did not have the right against self-incrimination. Evidence
obtained from any source was admissible. The judgments were
final. There was no right of appeal.
At Nuremburg, many of the accused were prosecuted, and then
the death penalty was executed within a matter of hours in some
cases, no more than a few weeks in just about every case. So
Nuremburg is not the gold standard.
My point earlier about having fair military commissions is
we also need to be concerned with how we explain the processes.
And I agree with you that many people, when they hear military
commissions, have bad thoughts. But when I have talked to
people about the sort of rights that we have with the Military
Commissions Act, and in the military commissions we have had--
the fair trials that really have been conducted under the
guidance of well-trained, qualified, conscientious military
judges--when they hear about all the rights that people have at
the military commissions, they are sometimes very surprised
that those are military commissions and it is a fair process.
So we need to do a better job of being fully open, not
trying to hide things except those things that are a matter of
national security, and having transparent decision-making
processes to the point, to the maximum extent, having full and
open trials. And then the military commissions process can be
seen as a fair process that it really is.
Mr. Bartlett. In this arena of psychology and politics,
perception is reality. And although it--I am sure that it is
true that if we have a military commission trial, that it would
not be conducted differently in Gitmo than it would be on the
continental United States. But I will tell you, gentlemen, the
perception would be very different about where it is conducted.
If we are going to conduct those trials, we need to conduct
them on the continental United States because the perception
will be very different than if we conduct them in Gitmo.
Thank you very much for your service. I want to tell you
how proud I was of all of your uniformed lawyers. I am not
always proud of lawyers. But I want to tell you how proud I was
of your uniformed lawyers. Every one of them came and sat at
that table you are sitting at and told us that civilized
nations do not torture.
Thank you very much for the quality of the people that work
in your divisions. Thank you, and I yield back, Mr. Chairman.
Mr. Ortiz. Dr. Snyder.
Dr. Snyder. Thank you, Mr. Chairman. Thank you also for
your service. I will add to Roscoe's comment. You are also
darned good-looking, too, and we appreciate you--appreciate all
you have done.
I want to--I am going to pick up and just follow up on what
Roscoe asked about with regard to perception, because you all I
think generally have the belief that no matter where you do
these commissions the way you all would like to have them done,
it is a fair process whether it is in Guantanamo or here.
Picking up on what you said, General Walker, I think I
guess anyone who is a lawyer recognizes that judges come from a
broad spectrum of backgrounds. Again, you know, sometimes you
just get off-the-wall opinions that, I believe in your words,
could increase the likelihood of finding constitutional rights
here.
There is a flip side of that though, too, isn't there, that
gives the perception that Roscoe brought up: which is we do not
want to be perceived as a nation that we are going to keep
these people on a Caribbean island in order to deny them
rights. I mean, that is the flip side of this.
I would--I prefer the first view which is, no, we are going
to treat them fairly. If a hurricane closes Guantanamo and they
are swept to Miami for a weekend, we are giong to--they are
going to have the same rights because we are treating them
fairly everywhere. So I think that is the flip side of that.
I want to ask this specific question. I will just show my
Marine Corps background, I guess, and ask you, General Walker.
Today in Guantanamo, if an inmate were to attack another inmate
and kill them, what body of law would control the murder trial?
General Walker. I am actually not certain of the answer to
that.
Dr. Snyder. Well, let's just leave it at that for today.
Because--I mean--the issue is, would it be American criminal
law or would it be--or if they, you know, stole money from you
when you went down there to see them, what body of law would
control? I would be--Let's take it as a question for the
record.
[The information referred to can be found in the Appendix
beginning on page 65.]
Dr. Snyder. I wanted to ask--a couple of you in your
statements, you talk about one of the changes you would like to
see is more of a duty for the prosecution to disclose
exculpatory evidence. How did that get overlooked?
I mean, how can a prosecutor sit there knowing they have
got in their file a statement from--you know, I will just make
some--you know--two eye witnesses said that a--you know--a
perpetrator was three miles away at the time. How could a
prosecutor not turn that over? How did that get overlooked? Was
that an oversight by the Congress?
Admiral MacDonald. Actually, sir, the prosecutors assigned
to the Office of Military Commission are turning them over.
That is the good news, is that despite the rule that was put in
place in 2006 and 2007, the prosecutors have been doing that.
This is simply codifying the practice that the prosecutors have
been doing in the commission since 2006 when the Military
Commissions Act was first enacted. So that is the good news.
I think what this rule change does is it extends it now to
an affirmative duty on the prosecutors to disclose mitigation
evidence for sentencing purposes and also to disclose evidence
that could be used to impeach a witness.
Dr. Snyder. So you have had, what, three trials so far in
the military commissions, and you all feel comfortable that
that disclosure has been going on? Okay.
The Ranking Member made some comment about you confronting
the Administration or something. We have had a change in
Administration, so I don't think there is going to be any
payback here. But I did notice you all--I think three of you
went out of your way to say this is your personal legal
opinion. Is that just what lawyers do? Or is there some reason
that you are--it is a complicated enough activity--you haven't
done a group think on these comments. Is there anything magic
about the fact that--we are not used to people putting that in
their opening statements, that this is your personal legal
opinion.
General Walker is that--what is going on?
General Walker. I think to a degree, that is what lawyers
do. You always have to try a caveat. However, our specific
invitation to the committee was to express our personal
opinions on the modifications to the Military Commissions Act
under the Senate bill.
Dr. Snyder. And it is very helpful because this is a
complicated area of law, and we appreciate your service and
appreciate--Yes, Admiral?
Admiral MacDonald. And, sir, you may remember that in 2006
we were specifically invited up to testify before the House
Armed Services Committee (HASC) and to give our personal
opinion because we--much of our testimony was contradictory to
the Administration positions. And so we take our duties
seriously that, when you ask us to give our personal opinions,
we will come up and we will tell you.
Dr. Snyder. Thank you for your service. Thank you Mr.
Chairman.
Mr. McKeon. Will the gentleman yield? And they gave
contradictory opinions and they are still here. That is a good
thing. Thank you.
The Chairman [presiding]. Mr. Forbes, please.
Mr. Forbes. Thank you, Mr. Chairman. And, gentlemen, thank
you for being here. And I apologize, I only have five minutes.
So if I am short, it is not because I want to be rude; it is
just because I want to get the questions in for you.
One of the things that we always realize is if we are going
to keep somebody from seeing the forest, the best way to do it
is to drive them deep into the trees.
When the American people hear all this debate, they hear
some specificity but they don't see the big picture. I want to
take you back to the big picture just a moment. And one of the
parts of the big picture is we are not talking about purse
snatchers here,--you know--we are not talking about bad check
writers. We are talking about people, really, that could pose a
threat to U.S. citizens.
The Attorney General of the United States, Mr. Holder,
testified before the Judiciary Committee and he said this: He
said that in his office they receive a great deal of evidence
or information about these detainees, these alleged terrorists.
Some of this information is classified, obviously some is not.
Some is hearsay, some is not.
However, the Attorney General said this: If his office
concluded that in the totality of that information it led to
the conclusion that the detainee had a probability of harming a
U.S. citizen, that the Attorney General would detain that
individual even if he did not have enough admissible evidence
in court to charge him and convict him of a crime.
I am asking you, Admiral MacDonald, because you have used
the standard of justice and fairness, is the Attorney General's
standard, the testimony he made, does that meet a standard of
justice and fairness?
Admiral MacDonald. Yes, sir. And----
Mr. Forbes. Alright. If that is the case--and you can talk
in just a minute, but let me get this in. If that is the case,
and we talked about perception here, if somebody were to spin
that standard of justice and fairness and suggest it wasn't
just and it wasn't fair, and the perception was that it wasn't
just and fair, should the Attorney General change his position
because the perception somehow or the other was out there that
it wasn't?
Admiral MacDonald. No. I don't believe he should.
Mr. Forbes. If that is the case, then, one of the things
that we forget sometimes here is that we are looking at a
balance between prosecutors and defendants. We don't also talk
about the difficulties prosecutors have when you are picking up
and trying to get evidence in Afghanistan and other places. You
don't always have the right to use search warrants to get the
evidence that you want over there like you would here for a
domestic trial, do you?
Secondly, you don't have the ability to have grand juries
to subpoena evidence in. You can't subpoena business records
and other things when you are in foreign countries. So you have
a difficulty in that balance of power already.
The question I am going to ask you is this: Is there anyone
who would disagree on our panel today that, if we held the
commissions within the United States, that it would be more
likely than not that it would shift the balance of power more
towards the defendants than the prosecutors?
Nobody answers that. I am--Yes, sir?
General Rives. I would disagree that it would shift the
balance just because we shifted the location of the military
commissions. If they are military commissions----
Mr. Forbes. You don't think they would have more rights
because they were in the United States than if they were held
elsewhere?
General Rives. I don't believe they have any more rights
under the military commissions, wherever they are prosecuted.
Mr. Forbes. Wherever they are prosecuted. Does anyone
disagree with that? Was it your testimony that they could
probably have more rights if they were geographically in the
United States?
General Rives. I testified there would be an argument they
would have more rights.
General Walker. I agree with General Rives that, as a legal
proposition, they would not automatically be extended more
rights. However, it is my opinion that there is a greater
likelihood that a particular court or jurisdiction could choose
to extend greater rights.
Mr. Forbes. Let me ask you this. If we use Article III
courts versus commissions, would it be more likely that they
would have more rights for the defendants than for the
prosecutors?
General Walker. Yes.
Mr. Forbes. That would shift it. You have testified that
you did not oppose the Article III courts of the commissions.
But does anyone there favor a preference for Article III
courts?
I take it the answer is no.
If we adopt the Administration's recommendation regarding
detainee statements, the voluntariness standards, would that be
a shift in power to the defendant or to the prosecutor?
Admiral MacDonald. To the defendant.
Mr. Forbes. Does anyone disagree with Admiral MacDonald's
testimony? Everybody is shaking their head no.
If we do not try those offering material support for
terrorism in military commissions, but rather do so in a
criminal court, wouldn't that make it more difficult for us to
get convictions for those individuals as well? Anybody?
General Rives. If we did it in an Article III court, in
Federal court? Any prosecution in an Article III court could be
more difficult, because we are talking about evidence that was
obtained on the battlefield and not by law enforcement
authorities.
Mr. Forbes. And the last question I have, if I have time to
get it in. The Administration has proposed to drop material
support for terrorism from the list of offenses triable by
military commissions. Do you agree with the Administration's
position?
Admiral MacDonald. No.
General Black. No, sir.
General Rives. No.
General Walker. No.
Mr. Forbes. No one agrees with that. Mr. Chairman, with
that, I yield back the balance of my time.
The Chairman. I thank the gentleman from Virginia.
Before I call on the gentleman from Georgia, let me ask
this simple question of each of you. Looking at the law as it
exists today, if you were to make one change or one correction,
what would you do? Starting with you, General.
General Black. I would go after the voluntariness issue,
sir, with respect to the admission of statements. I believe
that we ought to adopt a reliability standard with
voluntariness as a factor to be considered in the totality of
the circumstances by the trier of fact, the judge.
The Chairman. Admiral.
Admiral MacDonald. Sir, I would bring in the Classified
Information Procedures Act into the SASC bill as the standard
by which classified evidence is determined, whether or not it
is going to be introduced in a military commission.
The Chairman. General.
General Rives. I agree with Admiral MacDonald that the most
important reform we need to make is to clarify the rules and
strengthen the rules for handling classified information. And
it ought to be similar to the rules for the Classified
Information Procedures Act.
The Chairman. General.
General Walker. Mr. Chairman, the land forces stand
together. I concur with General Black that we need to first
modify the standard for admission of the hearsay evidence from
voluntariness to reliability, plus consideration of the
exigencies of the military battlefield.
The Chairman. Thank you. Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
And, gentlemen, I want you to know that I appreciate your
service and I consider that all of you are men of justice. And
we could disagree sometimes as to what that means, but I
certainly respect your intent to be respectful of our
Constitution and the great traditions of a civilized society.
And what I would like to know is: What is the statute of
limitations on a crime committed on the battlefield for which
an individual could be prosecuted?
General Rives. There is not one under the law of war.
Mr. Johnson. So a detainee could be held indefinitely, even
for life, for 20, 30 years, without being charged and without
being tried?
Admiral MacDonald. Congressman, we need to distinguish,
though, between the power to detain under the law of war and
the power to prosecute. Those are two separate and distinct
powers that nations have when they go to war.
Mr. Johnson. I understand, and I am just simply trying to
find out the practical impact of our military commissions setup
as is proposed in the Senate.
Also, why is it that the reliability standard should be
used as opposed to a voluntariness standard for admissions
against interest, if you will?
Admiral MacDonald. Congressman, it has to go with the
different circumstances under which statements are taken. So,
for example, our position is that in the heat of battle when a
soldier breaks down a door and, at the point of a rifle,
extracts a statement from a detainee, that that is an
inherently coercive environment. And if you have a
voluntariness standard, the likelihood, that if that is
applied, that a judge would find that that statement was
involuntary is great.
Mr. Johnson. I don't think that even in civilian courts
that a statement made at the time of a person's arrest, that
was spontaneous and voluntary, would be excluded as evidence.
And so I think the same standard would probably be the same in
a military tribunal.
But the bottom line is, you know--I don't think I have
gotten an answer to the question yet. What is wrong with
applying a voluntariness standard as opposed to a reliability
standard? And with respect to reliability, how can you
determine the quality of hearsay evidence that is admissible
against--in accordance with the Senate version here?
General Rives. Congressman, on the substantial question, I
believe reliability is the better test.
Mr. Johnson. Why?
General Rives. Because it effectively balances fair
treatment of the accused with the exigencies of the
battlefield. The reliability of a statement will depend on the
totality of the circumstances. Voluntariness is one of those
standards.
But I would emphasize that the pressure of the battlefield
could make any statement involuntary. If you consider, for
example, that ten soldiers in full battle gear, armed with M-
16s, confront a person and ask about the location of a hidden
improvised explosive device, his statement proves to be
reliable. But is it voluntary? That is the issue.
General Black. Sir, if I might add something. This past
Saturday morning I happened to have the opportunity to sit down
with a young judge advocate who was advising a Special
Operations team in Afghanistan. I talked to him in Bagram this
past Saturday morning and I asked him that very question:
Voluntariness or reliability? Which way should we go on this?
Because we are talking about it now. And his quotes--and I will
give it to you straight up:
``Our mission on the site of capture is information
exploitation. Exploitation and prosecution do not mix. Imposing
a voluntariness standard would disrupt our mission. Tactical
site exploitation interrogations are perhaps our most important
results in terms of continuing success in this fight.''
So his position was reliability, but with voluntariness as
a factor to be considered. And you can almost consider it as a
sliding scale, sir. The greater the government intrusion, if
you follow the analogy of the Fifth and 14th Amendment
analysis.
Mr. Johnson. Okay. Thank you. And could someone answer the
question about the level or the quality of the hearsay that
could be admissible or that would be admissible against an
accused?
General Rives. It will be fact-specific and determined by
the military judge. I very much appreciate the fact that the
rules have evolved for military commissions where the military
judges, who are very experienced and are picked for their
independence, judgment, discretion, and experience, are able to
make this sort of decision.
It is hard to give--it is impossible to give a blanket rule
that would fit in every occasion, but I can say that based on
the facts of the case, I trust the judgment of our trial judges
in these sort of cases.
Mr. Johnson. Thank you all.
The Chairman. I thank the gentleman.
Before I call on Mr. Coffman, let me ask this question of
the Admiral. How would you define ``proximate to the
battlefield''?
Admiral MacDonald. Actually, sir, that is--this is exactly
the discussion that we are having with the Administration after
the SASC hearing last week. The Administration favors a
voluntariness standard with a battlefield exception. I think we
go at it the other way: A reliability standard, taking
voluntariness as one of a number of factors that you would
weigh and balance, a judge would weigh and balance, in
determining whether or not the statement was ultimately
reliable.
We are pretty close. Over the last week we have been
working on, as General Black said, kind of this sliding scale.
And I think at this point we would assess it this way: The
closer you are to the battlefield, the more that voluntariness
would recede and you would look at the kind of indicia of
reliability of the statement itself. At some point, though, as
you take the detainee off the battlefield and as you put them
into a confinement facility, then the nature of the
interrogation changes.
So you go from this tactical interrogation that General
Black talked about on the battlefield in Afghanistan, you move
away from the intelligence interrogations that go on, and at
some point you are starting to look at exploitation, getting
statements for prosecution. At that point, I think we all agree
that voluntariness should be the standard at that point.
So all of these detainees at Guantanamo right now, all
their statements ought to be evaluated under a voluntariness
standard, because they have been removed from the exigencies of
the battlefield. But we are pretty close and working with the
Administration on that test.
The Chairman. I thank the gentleman. I did not see Mr.
Rooney, Mr. Coffman. So we will call on Mr. Rooney first for
five minutes.
Mr. Rooney. Thank you, Mr. Chairman.
Thank you all for your service and your leadership. And as
far as what former Captain Murphy had to say earlier, all I
have to say is first team to that.
I wanted to go into two sort of separate areas. I have a
question, but I want to start with a follow-up to something
that I think Congressman Forbes was raising, but also that
Admiral McDonald and General Black--I am a little confused with
something that was said before.
When you were talking about, Admiral, the commissions could
be properly held in the United States, I was getting the gist
from you that it insulated from outside distractions. In fact,
we had a United States citizen that was brought to the United
States and successfully prosecuted in a commissions setting, a
case involving an actual U.S. citizen. So, therefore, when we
bring noncitizens from Guantanamo to the United States, we
should be able to do it as well.
However, then General Black, I think, made the statement
that depending on the forum, extra-constitutional protections
beyond habeas corpus, from the court's ruling--you know, Fifth
Amendment due process rights and the like--may attach,
depending on which court they get or which district they get or
whatever the circumstance may be.
So I don't know if I am seeing a sort of--can we be--and
the reason I ask this is because, again, like Congressman
Forbes said, from a 30,000-foot view, my constituents in the
16th District of Florida are going to be very concerned about
us bringing detainees from Guantanamo to the United States. So
I have to look them in the eye and say the judge advocates are
sure that we are going to be able to do this in a way that is
not going to give them the same rights as American citizens,
that they are not basically de facto constitutionally protected
American citizens. Because in their eyes, or in at least some
of them, you know, they are terrorists, so to speak.
So can you try to for me--are they going to get extra-
constitutional rights, or are we going to be able to insulate
them in a commission?
Admiral MacDonald. Sir, in my opinion, they are going to
get due process, but they are going to get due process as
informed by the law of war. And, so that we need to look to the
law of war over time, and we also look to international
tribunals, like General Walker talked about--the International
Criminal Tribunal for Rwanda and for Yugoslavia--to look for
that body of law, those rights, that we would bring into the
commissions process.
We have done that analysis. We have looked at the military
commissions rules. We have looked at the amendment that the
Senate--or the bill that the Senate has proposed. And we
believe that it satisfies the due process concerns as informed
by the law of war.
Now, I believe there is some disagreement, and I think the
Administration may have a different opinion, but our opinion is
the law of war is the body of law you look to to inform what
process is due to a detainee, whether in Guantanamo or in the
United States.
Mr. Rooney. And I am confident that you are correct. My
concern is that you are also correct, if I think--if I get the
gist of what you are saying, that from there we don't know what
is going to happen, because it is very rare to say we are
bringing a noncitizen into this country and we are giving them
all the constitutional rights in court. We are going through
uncharted territories.
Am I confident that you guys are going to get it right?
Yes. But after that, where are we going to go? That is what I
am a little afraid of. Go ahead.
I just want to really quick, because my time is,
unfortunately, limited. One of the things you talked about,
voluntariness. I completely understand your statements with
regard to voluntariness and the classified information, but
what I want to get into is classified information.
One of the things that I am concerned about is when we have
detainees, we get evidence from them. A lot of times the
evidence may have been gotten from a source or somebody who is
a clandestine agent, so to speak, or the like.
And I am a little concerned about when we have this
evidence that is classified or protected. What protections or
procedures do you feel are best under the act, or changing the
act to move forward with regard to making sure that if we have
sources in foreign lands that are helping us, that we are not
putting them in jeopardy? And also whether or not this
information you all talked about, the Classified Information
Procedures Act--could you just go into that briefly? Go ahead.
Admiral MacDonald. It does--the CIPA has--first of all,
Congressman, CIPA has been around for a while, a long time.
There is about 20 years' worth of case law that go with CIPA.
It has been used in Federal court very successfully. That is
one of the reasons why we want to--we are recommending to bring
it into the Military Commissions Act.
When the Military Commissions Act was passed in 2006, we
testified about Military Rule of Evidence 505, which is the
military analog to CIPA. It hasn't worked well over the last
two to three years. The reason? There is not a robust body of
case law that goes with MRE 505; there is with CIPA. And it has
procedures to address your concern, which is the protection of
sources and methods for gathering statements.
But at the end of the day, the judge is going to have to
rule on whether or not a detainee is entitled to get the
sources and methods. And then, as we testified in 2006, it is
ultimately going to be up to the government, to the United
States, to say that they want to proceed with a commission and
introduce and disclose sources and methods or forego it. That
is how CIPA would operate in that context.
The Chairman. I thank the gentleman. The time has expired.
Mr. Ellsworth.
Mr. Ellsworth. Thank you, Mr. Chairman. Thank you,
gentlemen.
I am sitting here thinking, after 25 years in local law
enforcement, I was wishing I could claim battlefield
circumstances in some of our interrogations; unfortunately, we
couldn't get away with that.
But, I have a real quick question, and then I am going to
defer to Mr. Kratovil. And, Mr. Forbes, thank you; I like the
rapid-fire questions. We get a lot more answered in a short
amount of time.
Are there cases and circumstances--I know you prefer the
military commission. But are there cases you can think of,
where Article III is preferred or would be appropriate at any
time in these proceedings, that you would say this ought to be
an Article III in the circumstance that we are talking about?
Does that make sense?
General Black. I can't think of a particular hypothetical
right now, but I don't want to foreclose the opportunity
either. Article III courts are another tool that we can use.
Mr. Ellsworth. And with that, that is the only question I
had. I will give Mr. Kratovil the rest of my time.
Mr. Kratovil. Thank you. Gentlemen, forgive me; I am a
former State prosecutor and am not as familiar, obviously, with
the military forms of justice that we are talking about. But I
do have a few questions for you.
My first question is: Is it the position of all of you that
individuals that are detained at Guantanamo Bay right now could
be detained indefinitely without a finding under any of these
possible sources--commission, Article III, or a civilian court?
Could they remain indefinitely without having any finding?
Admiral MacDonald. Yes, sir.
General Black. Yes, sir.
Mr. Kratovil. Okay.
General Walker. With, I think, the exception, sir, that the
``indefinitely'' means, under international law and the law of
war, for the duration of the conflict. So it is not truly
indefinitely.
Mr. Kratovil. Okay. At what point do we establish some
standard of proof to continue detention based on the decision
to take them before one of these--either the commission or the
Article III?
Admiral MacDonald. Yes, sir. If a detainee was taken to a
military commission, and let's assume that at that commission
the detainee was acquitted. If the United States continued to
believe that that detainee posed a serious threat to the
security of the United States, the detainee could be put back
into detention. And that is the difference that I was pointing
out earlier, the difference between the power to detain and the
power to prosecute. But there would be a process following
that, and it would be habeas.
Mr. Kratovil. Okay. What--ultimately, what is the purpose
of bringing these individuals before either the commission,
Article III, or a Federal civilian court? Ultimately, what is
the purpose?
General Walker. Punishment for specific crimes as opposed
to detention as a national security threat.
Mr. Kratovil. Okay. Is it punishment? We are jumping to
punishment? Or is there some need to determine whether or not,
in fact, they have committed what they are bringing-- brought
before those bodies?
General Rives. It is both. We should prosecute to determine
whether we can prove guilt beyond a reasonable doubt; and if
so, we apply an appropriate punishment. And the separate
question that we have discussed is whether the person should
continue to be detained. Ultimately, that is a policy call. We
do have to establish fair procedures to periodically review the
propriety of continued detention.
Mr. Kratovil. Alright. So it is fair enough to say that the
purpose of them is to, in a sense, determine the truth as to
the allegations.
What is the danger in allowing either involuntary or--well,
involuntary statements or unreliable statements?
General Rives. Number one, you would--you are more likely
to get an unjust result. And most importantly, we are concerned
about reciprocity; how would we want our soldiers, sailors,
airmen, and marines to be prosecuted if held by a foreign
authority? The Military Commissions Act provides for a fair
process that I would be comfortable with our people being
prosecuted under.
Mr. Kratovil. Okay. By the way, the discussion that you are
having, I was about to ask about the distinction you were
making in reliability versus voluntariness. And based on the
discussion that you had with the Chairman, to me that sounds
like a very reasonable compromise where you are saying that
voluntariness should be used in a situation after detention,
where you don't clearly have the issue of, really, battlefield;
whereas using the reliability when you are talking about other
factors that obviously are not similar to a criminal-type of
interrogation. So to me that sounds like a very reasonable
compromise and I salute you for it.
And let me say this. We are obviously having all of these
discussions, because it does not get any more complicated than
trying to determine how best to deal with individuals that we
suspect are involved, but aren't necessarily at a point of
having proof that we would have in our--in typically under
normal prosecution. It is a very difficult balance, and I
salute you for trying to find it.
The Chairman. At last, Mr. Coffman.
Mr. Coffman. Thank you, Mr. Chairman.
Thank you all for your service. I was not in the JAG Corps;
I expect lower test scores and a tremendous threshold for pain.
I was an infantry officer in the United States Marine Corps.
Let me express a concern that I think there is some fantasy
that we are not a Nation at war. We are a Nation at war, and we
are fighting irregular forces bound by an ideology who often
use terrorism as a tactic. And I guess it has been redefined as
a man-caused disaster, and we are not involved in the global
war on terror, but I believe it is called ``overseas
contingency operations.''
But, there seems to be--we ought to look at the--you know--
we're--there is now a view that this is a criminal justice
issue. And it would seem that combatants who are plucked off
the battlefield, that there are--one is, did they in fact
violate the law of random warfare? Are they war criminals? And
the other one is the fact that they are combatants, and they
ought to be detained until this war is over.
And we have released those that have been detained--plucked
off the battlefield, detained, that have returned to the
battlefield to kill Americans. This is a failed system, and I
want you all to comment on this.
General Walker. Congressman, I believe there are two issues
that come into play there.
The first, again as we have mentioned, is the detention
process as opposed to the military commissions process where
individuals would be potentially prosecuted and held
accountable for their actions. That is the balance of trying to
achieve balance of accountability for the law of war and
violations of the law of war, and, at the same time, maintain
those standards of justice.
The individuals--there is, to my knowledge, some evidence
of individuals who have been released from Guantanamo and
returned to the battlefield. But our testimony today, what we
were focusing on, or attempt to focus more, was the military
commissions when we are actually bringing the individuals to
their responsibility; which is at, of course, a later point in
time.
General Rives. Congressman, I would say we are holding the
detainees because they are belligerents and because they are
active participants in the current conflict against the United
States and our coalition partners. We need to continue to hold
them until we are convinced they are no longer a threat to us.
Admiral MacDonald. And Congressman, as you said, the law
enforcement model does not work in this instance. That is why,
in terms of prosecutions and in terms of detention, we look to
the law of war, because it gives us the power to do both.
General Black. We can't be one-sided on this, sir. We have
to apply the rule of law evenly and fairly across the board.
And I certainly understand your perspective and your viewpoint.
And as a soldier and as the father of a soldier who is
currently serving in Iraq, I share your concerns in many
respects. But again the even-handed application of the rule of
law has to be at the forefront of our national policy in my
view. And I believe that we execute our responsibilities pretty
darn good.
Is the system perfect? No, sir. And as you have noted,
there have been detainees who have returned to the battlefield.
But I think, by and large, it is a system that is managed by
men and women of good character and good heart, who are trying
to do the very best they can to do what is right every single
time, and to keep our Nation's best interests and the rule of
law at the forefront.
Mr. Coffman. Thank you for your testimony, gentlemen. And
again I would stress that terrorism, and that our enemies are
fighting us, and this is--we are engaged in a war. And I don't
think that that is the view of this Administration, but it is
certainly my view.
I yield back the balance of my time.
The Chairman. I thank the gentleman.
Mr. Kratovil, you were next on the list. Do you wish to use
your time?
Mr. Kratovil. No.
The Chairman. The gentleman yields back.
In that event, it appears, Mr. Larsen.
Mr. Larsen. Thank you, Mr. Chairman. Just a few questions
to clarify some things for me.
I remember being here in 2006 and getting the MCA put
together. And I think we made a lot of errors in putting the
MCA together, which got us to today and barely got us through
the last three years of implementing the MCA.
But, I am not an attorney, but of course over the last
couple of years I have been able to try to at least get up to
speed on some of the concepts that we have struggled with to
create a system that can apply for detainees.
And I have a very general question to start--and a yes or
no might be appropriate, I will let you all decide. But in your
view, have we prosecuted and convicted detainees to the point
that Americans have got the justice that we deserve?
There is all this talk about, you know, should, you know,
all these rights that we might give to terrorists. I don't--I
am not concerned about that. I am more concerned about the
justice for the victims of 9/11, justice for Americans in this
process. Have we prosecuted and convicted detainees to the
point where we can say that we got the justice we deserve?
General Black. My view, sir, no. We have been mired. This
has been a time-consuming and extraordinarily lengthy process.
The best thing we can do for the American people and for the
detainees is to move the process forward, get these rules put
into effect and get the process moving.
Admiral MacDonald. Congressman, in--when I talked about the
Classified Information Procedures Act, many of these cases, if
not all of them, involve classified evidence. The trial teams
will tell you that they have been mired down because they don't
have a set of procedures that are rational, that make sense,
and that can move the process along.
And that is why I think General Rives and I kind of focused
on CIPA as an important aspect of improving the Military
Commissions Act because it will do just that; it will speed the
prosecutions that are going to take place under this act.
General Rives. Congressman, my answer to your question is
no. And the brief reason why not is the process for the current
military commissions was set in motion by executive order on
November 13, 2001. We have only had three complete prosecutions
under it.
If Americans were getting justice, we would have had a
process that had a greater sense of urgency, emphasis on
fairness, and procedures that are respected in the
international community. But we should have had more
prosecutions before now.
General Walker. I concur that justice delayed is rarely
justice served. And I think the speed of prosecutions will help
everything. That is what we hope some of these changes to the
Military Commissions Act will enable us to do.
I can say that there has been greater progress of late than
in the first couple of years under the Military Commissions
Act, and I am hopeful we can continue that momentum.
Mr. Larsen. Another generalized question here. On June 12
of last year, in a 5-4 decision, the Supreme Court rejected the
view--well, they held that detainees being held at Guantanamo
have a habeas corpus privilege under the suspension clause of
the Constitution. And the Court also held that section 7 of the
MCA is an unconstitutional suspension of right, because its
procedures to review the status of detainees are not an
adequate and effective substitute for habeas corpus.
There have been comments here by a lot of good folks on the
committee and in Congress that the remaining detainees being
held at Guantanamo are in fact dangerous. Given that 5-4
decision last year and these statements, can we say that each
and every one of the detainees that is there is dangerous, does
belong there, is rightfully there, and ought to be prosecuted?
Do we actually know that?
General Black. Sir, we can say that each of the detainees
that is currently at Guantanamo, they have all been the subject
of a combatant status review tribunal that looked at the
circumstances of their capture and all the facts and
circumstances surrounding their background and has made a
determination that they should be retained in custody.
So without specific cases and specific knowledge, I can't
go any further than that.
Admiral MacDonald. And, Congressman, that is exactly what
the President set up with these task forces on January 22. One
of them was to do just that, is to look at all of the detainees
at Guantanamo and sort them--those that would be continued in
detention because they continue to pose a threat to our
national security, and those that have committed crimes such
that they need to go before a commission.
Mr. Larsen. Fair enough. Thank you.
The Chairman. I thank the gentleman.
The gentleman from Texas, Mr. Conaway.
Mr. Conaway. Thank you, Mr. Chairman, I appreciate that.
Gentlemen, thank you for being with us today.
Admiral MacDonald, you have talked a couple of times--at
least asserted--that the handling of classified information
under the existing structure is flawed. Could you articulate
for us something other than just that assertion, and also give
us some examples of where prosecutors have not been able to
introduce evidence that they would have been able to introduce
under your scheme?
Admiral MacDonald. Congressman, in talking to a number of
the prosecutors, under the current scheme in the MCA, they are
having to submit written declarations to the court, the
military judges, and they are not able to take part in ex parte
hearings that a Federal prosecutor can get under CIPA.
This has really, in their opinion, bogged down the process
because the judge is asking them to put it in writing. The
judge then has to review these written submissions, respond
back. There is additional work that needs to be done. There is
a lot of back-and-forth that has been going on.
Mr. Conaway. Okay. So it really is a timing issue as
opposed to us not being able to make the decision you talked
about earlier, that we either disclose sources and methods or
we walk away from prosecution. That hasn't happened under this
current scheme, it is just a matter of how much time it is
taking to get from point A to point B; is that the gist?
Admiral MacDonald. Yes, sir. They are saying it is a more
efficient system under CIPA.
Mr. Conaway. But still protects the classified information
completely.
Admiral MacDonald. Yes, sir, it does.
Mr. Conaway. Just an editorial comment. Well, first off, is
there a bright line on the definition of--and General Rives,
you said cruel, inhuman and degrading treatment. Is there a
spectacularly bright line for that definition?
General Rives. No, there is not.
Mr. Conaway. Okay. So every court is going to have to
decide for themselves.
General Rives. Yes.
Mr. Conaway. Okay. Who sets the international standards you
have been holding us accountable to? Each one of you have
mentioned international standards for whatever. Who set those
standards? Did we have a role in helping set those standards?
Admiral MacDonald. Well, Congressman, I would say on the
international criminal tribunals that we talked about, the
United States has supported those tribunals and the rules that
are in effect in those tribunals.
Mr. Conaway. So that is collectively? Every time you have
mentioned international standards, that is the standard which
you refer to?
Admiral MacDonald. And then there are other standards that
have come up through the law of war over the years.
Mr. Conaway. And did we as Americans participate in those
developments?
Admiral MacDonald. Yes, sir.
Mr. Conaway. Okay. Are there instances--are there other
instances where we disagreed with those international standards
because they don't believe--we don't believe they protect our
interests properly, and made a conscious choice to do something
different than those standards? Just think about that. If you
get by with an answer, that is fine.
I am going to yield the rest of my time to my colleague
from Virginia, Randy Forbes. But we ought to do what is right,
what respects law, what is respectful for law and order and all
those kinds of things, just because that is the right way to do
it.
I am unpersuaded, each time each one of you said it, that
we only do that or that one of the reasons to do that is
because we want to expect our soldiers, and sailors, and
marines and airmen to be treated that way from other countries.
I can't imagine another country is going to raise their
standards because of that. We ought to do it just because it is
the right thing to do.
With that, Mr. Chairman, I yield back to--I yield the rest
of my time to Mr. Forbes.
Mr. Forbes. General Black, you mentioned in response to
Congressman Coffman that we need to apply the law and we need
to do that evenly. But I just want to point out, that is what
we are doing right now. We are writing the law. And whatever we
write is what we are going to be applying. That is why
Congressman Coffman asked that question, because we need to
write it correctly.
Also, the task force. Admiral MacDonald mentioned that the
Justice Department has been looking at these tribunals. There
was a memorandum on May 4 where, as you know, the Assistant
Attorney General said that there was a serious risk that
Federal courts would adopt a constitutional due process
approach when evaluating military commission tribunals if they
were brought to the United States. And the Zabadas case--as all
of you, I know, can quote backwards and forwards--says it is
well established that certain constitutional protections
available to persons inside the United States are unavailable
to aliens outside of our geographical borders, but once an
alien enters the country the legal circumstances change.
I would ask if there is not a single one of you that, if
you were defending one of these detainees, wouldn't use this as
a precedent, if they were here, to say full constitutional
protections applied once they entered U.S. soil.
And also if you were prosecuting a case outside of U.S.
soil, if you wouldn't use this as precedent to simply say, no,
there is a difference because look at this case. And my good
friend, Mr. Larsen, raised the Boumediene case, but that only
applied to habeas corpus. It didn't apply to all of the others.
If any of you disagree with what I have said, please
respond to that. I only have got a few seconds.
I take that as an agreement, and I yield back my time, Mr.
Chairman.
The Chairman. That is one way to get an answer.
Dr. Snyder. Mr. Chairman, I would like to hear them amplify
on--I mean, that is a complicated, fairly hurried question
there. I would suspect that they----
Mr. Forbes. Mr. Chairman, I didn't want to cut them off,
but I only had----
The Chairman. Dr. Snyder, we don't have time for that.
Thank you.
Would you like to comment further?
Mr. Forbes. No, Mr. Chairman.
The Chairman. Mr. Murphy, you are next on my list. Have you
not claimed your time? Go ahead.
Mr. Murphy of Pennsylvania. Thank you, Mr. Chairman. Mr.
Forbes, I would just like to say there is no one on this side
of the aisle that I am aware of, or in this Administration,
that is making the argument that detainees captured on the
battlefield, whether it is in Iraq or Afghanistan, should get
the same constitutional rights as Americans.
Now, if you were going to get tried in a commission, a
military commission under the MCA, and the MCA that is going to
be revised by this Congress of the United States and signed
into law, hopefully, by the President as soon as possible, then
you get some rights under international law, which we did sign
in past Administrations. But if you are an American, you get a
whole heck of a lot more constitutional rights.
But I would just say that one of those constitutional
rights that we are given on that as an argument is that we are
giving them the right to counsel.
Mr. Forbes. Would the gentleman yield?
Mr. Murphy of Pennsylvania. I would yield to you.
Mr. Forbes. And I would tell my good friend that I am not
suggesting that you would argue that. What I am saying is that
the current Attorney General's Office has warned the
commissions, if you have the commissions here--the task force
that is looking at a commission--if you bring the commissions
here, there is a serious risk that, regardless of what any of
us want, those full constitutional protections could be
applied.
And if you look at the Zabadas case, it certainly makes a
big distinction when you bring them to U.S. soil versus keeping
them outside. And my only purpose was to say we may have good
intentions not to do it, but once we bring them here, they may
be out of our hands. And I yield back.
Mr. Murphy of Pennsylvania. And I will take back my time.
I think that the legal interpretation as I read it, in
reading the same case and the same opinion by the Attorney
General of the United States, is saying that they are granted--
if you do bring them under the soil of our country, that they
would get habeas corpus, which is not the same as having the
whole spectrum of constitutional rights. And so, you know, we
could agree to probably disagree on that point.
And I would also like to mention, you know, Mr. Conaway,
that these are previous Administrations that we signed under
the Geneva and Hague Conventions and really stood on what the
values of the United States of America is. And we have
disagreed with our colleagues across the oceans over in Europe.
We did not sign an International Criminal Court because it
basically said you won't defer to our courts or our courts
martial. And that if we are going to have a court martial, we
want to try our soldiers for committing crimes even, if they
are overseas, and we don't want to defer to the ICC, the
International Criminal Court.
So there are times when we disagree with our allies across
the river, and that is a healthy debate. But they respect our
opinion because they actually respect what we get done in
military justice via the UCMJ. So I just want to make sure that
we are making these distinctions.
And I would also like to say to my colleague, Mr. Coffman--
and, sir, I do absolutely respect your service. I would just
say that there is no one on this side of the aisle that is
trying to get our soldiers in the battlefield, these American
heroes that are keeping our families safe in Iraq and
Afghanistan, that are trying to make them cops, that are trying
to say that they get Miranda rights, or they get an attorney on
the battlefield or we have to--no one is saying that. But we
are saying that they should get a fair shake in a sense that we
just can't capture hundreds of people, wherever they are, and
just say we are going to lock you up in Guantanamo and throw
away the key.
Mr. Conaway. Will the gentleman yield for a comment?
Mr. Murphy of Pennsylvania. Absolutely, Mr. Conaway.
Mr. Conaway. The Global Initiative is in fact attempting to
Mirandize folks across.
Mr. Murphy of Pennsylvania. Mr. Conaway, we argue--we both
serve on the Intelligence Committee, we have had this argument.
I would say that that has been radically blown out of----
Mr. Conaway. I am just commenting. You said they weren't
doing that, and this Administration is doing that.
Mr. Murphy of Pennsylvania. Well, I would say that. And Mr.
Conaway, that we have made it clear that that is not the
intent. And that is not my intent, and that will not happen as
long as I am breathing on this Earth, that will not happen.
With the best of my ability; I am not the President of the
United States. So I can't say. And I will yeild back.
Mr. Conaway. Are you a dictator? I am not sure you have the
authority to make that statement.
Mr. Murphy of Pennsylvania. Well now--all I am saying is
that we need to put this in proper perspective. You know we are
losing--we are doing our best to earn hearts and minds and
capture and kill al Qaeda wherever they are roaming on this
Earth, and we need to continue to do so. But that does not
mean, and no one is suggesting here that that means we are
going to start reading them Miranda rights and that means that
we are going to give them an attorney when we capture them when
we are fighting in Kabul--when we are fighting--.
You can snicker and you can laugh, but that is not what we
are asking for. What we are asking for is proper justice under
what we have asked other countries to do in the Geneva and
Hague Conventions. And these servants, these men who wear the
cloth of our country, are trying to do the best that they can
and advise us.
And so I do want to salute all of you. I know this is not
easy. I know, frankly, when I was in Baghdad and we lost
soldiers, I wanted to go out and ring some people by their neck
and kill them myself with my own hands. And, frankly, I still
want to do that. But at the end of the day--and we have men and
women that still do that.
But we need to make sure that when we bring them to a
court, whether it is a criminal court, a military commission
or--and again, we are asking and arguing that it should be a
military commission for these folks, not an Article III,
meaning the same courts that we use in America. A commission, a
military commission court. That there are some standards that
we still must abide by, that we agree to, and we must have
fidelity to those commitments.
And I yield back the balance of my time.
The Chairman. I thank the gentleman for his comments.
It appears that Ms. Fallin is the last one on the list.
Please proceed.
Ms. Fallin. Thank you, Mr. Chairman. This discussion is
very interesting and very passionate, too.
When questioned by the Senate Repub--Senators at the Senate
Armed Services Committee at a July 7 hearing, Administration
officials said they believe detainees had some constitutional
rights in addition to the habeas corpus, but could not
articulate which ones or why they deserve constitutional
protections. And since we are already talking about this, I was
just curious if you could expand upon that particular comment
back from the Senate hearings on July 7.
Admiral MacDonald. Well, ma'am, I was at the hearing, and I
would disagree with that. Again, I think it depends on what
model you are using to analyze what rights are due. We would
look to the law of war. And we believe that under the law of
war, the process that is due is contained in the Military
Commissions Act as improved by the SASC language in there. I
think the Administration disagrees with that or they believe
that the law is unsettled on that and that there is, as was
pointed out, there is risk associated with bringing them here.
General Black. I might add, ma'am, that the 2006 Military
Commissions Act and the Senate bill that you are currently
considering both contain rights and privileges that are almost
identical--indeed, are identical--to privileges and rights that
are contained in our Constitution: the right to counsel, the
right to confrontation, et cetera.
Ms. Fallin. So you believe the protections are there.
General Black. There are some. There were built in.
Ms. Fallin. Are some.
General Black. That is correct.
Ms. Fallin. Do they need to be refined?
Admiral MacDonald. Well, as we have testified, and as you
can see in our written statements, we do recommend in a couple
of areas that the Senate bill be improved. But at the end of
the day, with those improvements we believe that it complies
with the law of war.
General Rives. And I don't believe there are any additional
protections needed to make the commissions process comply with
the United States Constitution. I believe it does comply with
the Constitution and with international law already. We are
talking about some enhancements that will help the fairness of
the process.
Ms. Fallin. Mr. Chairman, I have one other question, if I
can.
Generals Black and Walker, back in 2006, you testified in
front of this committee--that we were putting the MCA together
for the first time--and you testified that you felt the
standards for hearsay evidence were consistent with what is
accepted in the international legal community for war crime
trials, citing specifically the International Criminal Tribunal
of Yugoslavia (ICTY).
Have you changed your opinion? And if so, why?
General Black. I have not, ma'am. The rules that we are
putting together--that we put together in the 2006 Military
Commissions Act and the rules that appear in the current bill
meet or exceed the standards that are applied in the
International Criminal Tribunal for Yugoslavia and the
International Criminal Tribunal for Rwanda. So I have not
changed my views in that regard.
General Walker. I also, ma'am, have not changed my views. I
think we meet the standards that were established--in ICTY, and
other law of war where we have--if there has been a change, we
have noted some disagreement with some of the proposed changes
to those rules in the 2006 Military Commissions Act.
Ms. Fallin. Thank you, Mr. Chairman.
The Chairman. Thank you very much, Ms. Fallin.
It appears no one else wishes to interrogate.
I wish to thank the panel for their expertise and for their
service.
Reference was made a moment ago about the international
rule of law, and I suppose basically that is a reference to the
Geneva Convention and the determinations as it applies. That is
why we are here. We are at war. If we were not at war today, we
would not have this hearing.
And it is important that those of us that look at this
understand--and I know that we do. And any comments to the
contrary just don't hold water. We are at war. That is why we
are taking the time to do it right.
And as I said before--and I know I look at it like a
country prosecutor that I was--when one is convicted by any
jurisdiction, including but not limited to the tribunals, you
want it to stick, you want it done right. You don't want it to
be reversed on a procedural error or a substantive error.
And that is why we are here, to help prosecute in our own
way the effort via the young men and young women who wear the
uniform and who are protecting us so valiantly.
Gentlemen, thank you for your testimony. I thank the
committee. The committee is adjourned.
[Whereupon, at 4:00 p.m., the committee was adjourned.]
=======================================================================
A P P E N D I X
July 16, 2009
=======================================================================
=======================================================================
PREPARED STATEMENTS SUBMITTED FOR THE RECORD
July 16, 2009
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
=======================================================================
WITNESS RESPONSES TO QUESTIONS ASKED DURING
THE HEARING
July 16, 2009
=======================================================================
RESPONSE TO QUESTION SUBMITTED BY DR. SNYDER
General Walker. Federal criminal law could apply to both of these
scenarios.
(a) According to 18 USC Sec. 7(3) (2009), the term special maritime
and territorial jurisdiction of the United States, as used in Title 18,
include ``[a]ny lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction thereof . .
.''
(b) Article III of the Agreement Between the United States and Cuba
for the Lease of Lands for Coaling and Naval stations, February 23,
1903 (TS 418, 6 Bevans 1120), states that ``during the period of the
occupation by the United States of said areas under the terms of this
agreement the United States shall exercise complete jurisdiction and
control over and within said areas . . .''
(c) These two provisions, read together, allow for the application
of federal criminal law to crimes committed on GTMO. This proposition
is supported by Federal case law. (See, e.g., Gherebi v. Bush, 352 F.3d
1278, 1289 (9th Cir. 2003) (persons committing crimes on GTMO are
subject to trial in US courts); United States v. Lee, 906 F.2d 117, 117
(4th Cir. 1990) (Jamaican national charged under Federal law for crime
committed on GTMO)).
(d) Accordingly, various sections in Chapter 51 (homicide) of Title
18 of the United States Code could apply to the murder scenario. E.g.
18 U.S.C Sec. 1111(b) (making punishable murder in the first and second
degrees ``[w]ithin the special maritime and territorial jurisdiction of
the United States''). The theft scenario could be prosecuted under 18
USC 661.
3. Related Scenarios. The questions raised by the HASC logically
lead to permutations of the proposed scenarios, which should be
addressed. For instance, if the detainee killed a U.S. service member
at GTMO, federal criminal law could be used to prosecute the detainee,
but there may be other statutes that provide jurisdiction.
(a) First, we address the Uniform Code of Military Justice (UCMJ).
The UCMJ might apply to detainees through Article 2(a)(12) [10 U.S.C.
Sec. 802 (a)(12)] which, ``[s]ubject to any treaty or agreement to
which the United States is or may be a party or to any accepted rule of
international law,'' makes subject to the UCMJ ``persons within an area
leased by or otherwise reserves or acquired for the use of the United
States which is under the control of the Secretary concerned and which
is outside the United States and outside the Commonwealth of Puerto
Rico, Guam, and the Virgin Islands.''
(b) The Military Commissions Act (MCA) could possibly be used to
prosecute detainees at GTMO for a murder, but not for a theft. The MCA
addresses thefts on the battlefield in the sense of pillage, which does
not seem to be a theft offense of the nature proposed.
(c) The MCA extends jurisdiction over ``murder of a protected
person'' (10 U.S.C. Sec. 950v(b)(1)), and ``murder in violation of the
law of war'' (10 U.S.C. Sec. 950v(b)(15)). A ``protected person'' is
specifically defined in the MCA (10 U.S.C. Sec. 950v(a)(2)), and could
include another detainee because they are entitled to the protections
of common article 3 of the Geneva Conventions.
4. Conclusion. If a detainee killed a fellow detainee, he could be
charged pursuant to our federal criminal code (Title 18). If a detainee
commits a theft, federal criminal law could apply depending upon the
nature of the theft. The UCMJ and MCA might offer other avenues to
prosecute. [See page 16.]
?
=======================================================================
QUESTIONS SUBMITTED BY MEMBERS POST HEARING
July 16, 2009
=======================================================================
QUESTIONS SUBMITTED BY MR. SKELTON
Mr. Skelton. In your oral testimony, you referred to law-of-war
precedent for prosecuting individuals who were minors when the law-of-
war violations are alleged to have occurred. Please provide citations
to this precedent and your assessment of its application to the
applicable cases of detainees currently in Guantanamo Bay, Cuba.
Admiral MacDonald. In the aftermath of the Second World War, both
French and British military tribunals prosecuted and convicted minors
for war crimes. (See Trial of Alois and Anna Bommer, United Nations War
Crimes Commission, Law Reports of Trials of War Criminals (Vol. 9) 66
(1947)--three daughters convicted of war crimes committed when two of
the girls were between 16 and 18, and one daughter was between 13 and
16), see also the Belsen Trial (United Nations War Crimes Commission,
Law Reports of Trials of War Criminals (Vol. 2) (1947)--war crimes
convictions of individuals who served in myriad capacities at Bergen-
Belsen Concentration Camp under the age of 21).
In my view those cases are not directly relevant to the possible
war crimes prosecutions of detainees at Guantanamo or to the possible
war crimes prosecutions of persons detained in the future course of the
ongoing armed conflict against al Qaeda and associated forces. Rather,
I believe the practice of modern war crimes tribunals is more
appropriate.
The International Criminal Court (ICC) allows for war crimes
prosecutions under National systems of justice, of persons who were
between the ages of 16 and 18 at the time of their alleged misconduct,
but prohibits war crimes prosecutions in National systems of justice
for persons who were aged 15 or below at the time of the alleged
misconduct. The ICC itself does not have jurisdiction over persons
under the age of 18.
The International Criminal Tribunals for Rwanda and the former
Yugoslavia, do not have specific rules prohibiting or limiting war
crimes prosecutions based on age. Rather, the age of an individual
accused would be a factor to be considered in determining competence or
capacity to stand trial and mens rea for any particular offense. To
date, those tribunals have not included prosecutions of minors or
persons who were under age 18 at the time of their alleged misconduct.
The Special Court for Sierra Leone, set up jointly by the
Government of Sierra Leone and the United Nations, and which has to
deal with a large number of ``child soldiers'' alleged to have
committed war crimes, has jurisdiction over persons who were 15 years
old (or older) at the time of their alleged misconduct. The Special
Court has a well developed and separate justice process for juvenile
offenders that incorporates safeguards to minimize the stigma that may
attach to such persons as well as limits on punishments that may be
imposed. Those safeguards generally track internationally recognized
standards for the adjudication and rehabilitation of juvenile
offenders.
Mr. Skelton. In your written testimony, you seem to advocate for a
two-track approach for determining the admissibility of allegedly
coerced statements. If a statement was elicited for the purpose of
intelligence in the proximity of the battlefield, the statement should
be admitted if the interrogator was acting in accordance with the laws
of war. If the statement was elicited for the purpose of a possible
prosecution or was secured in a location that is not close to the
battlefield, then you seem to argue for applying a totality of the
circumstances analysis to determine the voluntariness of the statement
and thus its admissibility. Is that correct? If so, are the
considerations for the totality of the circumstances test which the
Administration has proposed in response to the Senate language
acceptable in your estimation? How would you define ``proximate to the
battlefield''? Would interrogations that occurred in a Theater
Internment Facility fall within your second track--that is locations
that are not proximate to the battlefield? How about at an internment
facilities below the TIFs?
Admiral MacDonald. I have consistently advocated a standard for
determining the admissibility of statements of an accused that
recognizes the distinction between a voluntariness standard that is
appropriate in settings where the interrogation appears to be akin to a
law enforcement interrogation, and a reliability standard that is
appropriate in settings where a Soldier or Marine is conducting an
interrogation at the point of capture for purposes of security, safety
and mission accomplishment. Suppression rules have generally developed
in order to deter conduct which we as a society find unacceptable on
the part of law enforcement personnel. On the field of battle,
conducting an interrogation at the point of capture in a manner that
conforms with the law of war is exactly what we expect of our
servicemembers.
My goal has been to ensure that battlefield interrogations are
treated differently from non-battlefield interrogations. But I have not
been seeking a ``carve-out'' from voluntariness that exceeds the need
for safety of our troops and mission accomplishment. I do, however,
believe that an explicit statutory distinction should be made between
statements that would be tested for voluntariness, and statements taken
at the point of capture or in closely related combat engagements
surrounding the point of capture. The latter would be tested for
reliability, so long as admission of the statement would be in the
interests of justice.
Where the line is drawn between statements that fall within one
test and statements that fall within another is a question that is best
left to the military judges who will have to apply the statute, and the
question will ultimately depend on the facts surrounding a given case.
Point of capture may be a place in a room, a room, a building, or a
city block or more, depending on the circumstances.
I offer two draft proposals for your consideration. The first
proposal is the one I recommend you use.
Sec. 948r. Treatment of statements obtained by torture or
cruel, inhuman, or degrading treatment; self-incrimination;
other statements by the accused
(a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR
CRUEL, INHUMAN, OR DEGRADING TREATMENT.--No Statement
obtained by use of torture or by cruel, inhuman, or
degrading treatment (as defined by section 1003 of the
Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)),
whether or not under color of law, shall be admissible
in a military commission under this chapter, except
against a person accused of torture or such treatment
as evidence that the statement was made.
(b) SELF-INCRIMINATION PROHIBITED.--No person shall be
required to testify against himself at a proceeding of
a military commission under this chapter.
(c) OTHER STATEMENTS OF THE ACCUSED.--A statement of
the accused may be admitted in evidence in a military
commission under this chapter only if one of the
following conditions is met:
(1) the statement was made during a force-
protection, tactical, or intelligence
interrogation in reasonable proximity in time
and location to the point of capture; the
totality of the circumstances renders the
statement reliable and possessing sufficient
probative value; and the interests of justice
would best be served by admission of the
statement into evidence. In determining the
issue of reliability, the military judge shall
take into consideration all of the
circumstances surrounding the taking of the
statement, including but not limited to the
degree to which the statement is corroborated
and the indicia of reliability within the
statement itself.
(2) the statement was voluntary. In determining
whether a statement was voluntarily given, the
military judge shall consider the totality of
the circumstances, including, as appropriate,
the details of the taking of the statement,
accounting for the circumstances of the conduct
of military and intelligence operations during
hostilities; the characteristics of the
accused, such as military training, age, and
education level; and the lapse of time, change
of place, or change in identify of the
questioners between the statement sought to be
admitted and any prior questioning of the
accused.
(d) OTHER USES PERMITTED.--Notwithstanding the above,
where the statement was not obtained by use of torture
or by cruel, inhuman, or degrading treatment, this
section does not prohibit use of the statement to
impeach by contradiction the in-court testimony of the
accused or the use of such statement in a later
prosecution against the accused for perjury, false
swearing, or the making of a false official statement.
I also support the following language, which has the support of the
Administration, and the Army and Air Force Judge Advocates General, the
Staff Judge Advocate to the Commandant of the Marine Corps, and the
Legal Counsel to the Chairman of the Joint Chiefs of Staff:
``Sec. 948r. Exclusion of statements obtained by torture or
cruel, inhuman, or degrading treatment; prohibition of self-
incrimination; admission of other statements of the accused
``(a) Exclusion Of Statements Obtained By Torture Or Cruel,
Inhuman, Or Degrading Treatment.--No statement obtained by use
of torture or by cruel, inhuman, or degrading treatment (as
defined by section 1003 of the Detainee Treatment Act of 2005
(42 U.S.C. 2000dd)), whether or not under color of law, shall
be admissible in a military commission under this chapter,
except against a person accused of torture or such treatment as
evidence that the statement was made.
``(b) Self-Incrimination Prohibited.--No person shall be
required to testify against himself at a proceeding of a
military commission under this chapter.
``(c) Other Statements of the Accused.--A statement of the
accused may be admitted in evidence in a military commission
under this chapter only if the military judge finds--
``(1) that the totality of the circumstances renders
the statement reliable and possessing sufficient
probative value; and
``(2) at least one of the following:
``(A) That the statement was made incident to
lawful conduct during military operations at
the point of capture or during closely related
active combat engagement, and the interests of
justice would best be served by admission of
the statement into evidence.
``(B) That the statement was voluntarily
given.
``(d) Determination of Voluntariness.--In determining for
purposes of subsection (c)(2)(B) whether a statement was
voluntarily given, the military judge shall consider the
totality of the circumstances, including, as appropriate, the
following:
``(1) The details of the taking of the statement,
accounting for the circumstances of the conduct of
military and intelligence operations during
hostilities.
``(2) The characteristics of the accused, such as
military training, age, and education level.
``(3) The lapse of time, change of place, or change
in identity of the questioners between the statement
sought to be admitted and any prior questioning of the
accused.
Mr. Skelton. In your oral testimony, you referred to law-of-war
precedent for prosecuting individuals who were minors when the law-of-
war violations are alleged to have occurred. Please provide citations
to this precedent and your assessment of its application to the
applicable cases of detainees currently in Guantanamo Bay, Cuba.
General Rives. My testimony included the statement that, ``The law
of war does not speak to the issue of minors as combatants . . .''
(emphasis added). Where the law of war speaks to the issue of age is in
the Geneva Convention on the Protections of the Civilian Populations.
Article 14 calls on States to create special safety protections for
civilians, including children under the age of 15. In the 2002 Protocol
to the Convention on the Rights of the Child, international law
requires States to take special precautions when persons under the age
of 18 are recruited into the States' armed forces.
There have been circumstances where national courts (in France and
Great Britain) prosecuted minors in the years following World War II,
but they involve circumstances not analogous or applicable to the cases
of the detainees at Guantanamo.
More recent rules established by the United Nations tribunals for
the Former Yugoslavia and Rwanda do not prohibit or limit prosecution
of individuals based on age. Instead the age of the individual is a
factor to consider in determining whether they have the capacity to
stand trial. Tribunals established for Sierra Leone, as well as the
International Criminal Court, establish age standards: minimum age of
15 or older for the Special Court for Sierra Leone; no trial permitted
for persons 15 years old or younger when the offense allegedly
occurred.
I believe the criteria established by the tribunals for the Former
Yugoslavia and Rwanda are the right ones to adopt for the MCA. We
should permit the convening authority and the commission judges to take
into account an individual's age, but the facts of a given case should
determine whether, and to what extent, a minor should be prosecuted for
war crimes.
Mr. Skelton. In your written testimonies, you argue against
eliminating the current appellate court to military commissions, the
Court of Military Commissions Review, as the SASC has proposed. Please
elaborate as to why you believe that the CMCR is better suited than the
Court of Appeals for the Armed Forces to review these cases?
General Rives. I fully support the appellate structure established
by the Military Commissions Act of 2006. The current structure, with
review by the Court of Military Commissions Review with further appeal
to the U.S. Court of Appeals for the District of Columbia and the U.S.
Supreme Court, provides comprehensive review by appellate military
judges experienced in military law and operations, with additional
review by the Federal appellate court with jurisdiction over related
detainee litigation.
I also fully support broadening the scope of CMCR review to include
factual sufficiency. This enhancement will align the scope of review
with that employed by the Service Courts of Criminal Appeals and
provide the additional assurance of thorough review of the underlying
facts that supported the conviction.
I concur with the Administration on this point and recommend
against the SASC proposal to expand CAAF jurisdiction. Retaining the
CMCR, composed in whole or part of appellate military judges
experienced in reviewing cases for both factual and legal sufficiency,
as well as military operations, is logical and efficient.
Mr. Skelton. In your written testimonies, you argue against
eliminating the current appellate court to military commissions, the
Court of Military Commissions Review, as the SASC has proposed. Please
elaborate as to why you believe that the CMCR is better suited than the
Court of Appeals for the Armed Forces to review these cases?
General Black. CAAF's role and responsibility under the UCMJ, to
conduct a legal review of courts-martial, is well-defined. I do not
believe it should be encumbered with a separate set of responsibilities
or the requirement to conduct a factual as well as a legal review. The
CMCR, on the other hand, can consist, in whole or in part, of appellate
military judges schooled in the application of a factual sufficiency
review and experienced in military law and operations. Therefore, the
CMCR is best suited to conduct this first level appellate review of
Military Commissions proceedings. I concur with the Administration on
this point and recommend against the SASC proposal to expand CAAF
jurisdiction under the circumstances.
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