[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
[H.A.S.C. No. 112-53]
TEN YEARS AFTER THE 2001
AUTHORIZATION FOR USE OF
MILITARY FORCE: CURRENT STATUS
OF LEGAL AUTHORITIES, DETENTION,
AND PROSECUTION IN THE
WAR ON TERROR
__________
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
HEARING HELD
JULY 26, 2011
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HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Twelfth Congress
HOWARD P. ``BUCK'' McKEON, California, Chairman
ROSCOE G. BARTLETT, Maryland ADAM SMITH, Washington
MAC THORNBERRY, Texas SILVESTRE REYES, Texas
WALTER B. JONES, North Carolina LORETTA SANCHEZ, California
W. TODD AKIN, Missouri MIKE McINTYRE, North Carolina
J. RANDY FORBES, Virginia ROBERT A. BRADY, Pennsylvania
JEFF MILLER, Florida ROBERT ANDREWS, New Jersey
JOE WILSON, South Carolina SUSAN A. DAVIS, California
FRANK A. LoBIONDO, New Jersey JAMES R. LANGEVIN, Rhode Island
MICHAEL TURNER, Ohio RICK LARSEN, Washington
JOHN KLINE, Minnesota JIM COOPER, Tennessee
MIKE ROGERS, Alabama MADELEINE Z. BORDALLO, Guam
TRENT FRANKS, Arizona JOE COURTNEY, Connecticut
BILL SHUSTER, Pennsylvania DAVE LOEBSACK, Iowa
K. MICHAEL CONAWAY, Texas GABRIELLE GIFFORDS, Arizona
DOUG LAMBORN, Colorado NIKI TSONGAS, Massachusetts
ROB WITTMAN, Virginia CHELLIE PINGREE, Maine
DUNCAN HUNTER, California LARRY KISSELL, North Carolina
JOHN C. FLEMING, M.D., Louisiana MARTIN HEINRICH, New Mexico
MIKE COFFMAN, Colorado BILL OWENS, New York
TOM ROONEY, Florida JOHN R. GARAMENDI, California
TODD RUSSELL PLATTS, Pennsylvania MARK S. CRITZ, Pennsylvania
SCOTT RIGELL, Virginia TIM RYAN, Ohio
CHRIS GIBSON, New York C.A. DUTCH RUPPERSBERGER, Maryland
VICKY HARTZLER, Missouri HANK JOHNSON, Georgia
JOE HECK, Nevada BETTY SUTTON, Ohio
BOBBY SCHILLING, Illinois COLLEEN HANABUSA, Hawaii
JON RUNYAN, New Jersey
AUSTIN SCOTT, Georgia
TIM GRIFFIN, Arkansas
STEVEN PALAZZO, Mississippi
ALLEN B. WEST, Florida
MARTHA ROBY, Alabama
MO BROOKS, Alabama
TODD YOUNG, Indiana
Robert L. Simmons II, Staff Director
Catherine McElroy, Professional Staff Member
Paul Lewis, Professional Staff Member
Lauren Hauhn, Research Assistant
C O N T E N T S
----------
CHRONOLOGICAL LIST OF HEARINGS
2011
Page
Hearing:
Tuesday, July 26, 2011, Ten Years After the 2001 Authorization
for Use of Military Force: Current Status of Legal Authorities,
Detention, and Prosecution in the War on Terror................ 1
Appendix:
Tuesday, July 26, 2011........................................... 41
----------
TUESDAY, JULY 26, 2011
TEN YEARS AFTER THE 2001 AUTHORIZATION FOR USE OF MILITARY FORCE:
CURRENT STATUS OF LEGAL AUTHORITIES, DETENTION, AND PROSECUTION IN THE
WAR ON TERROR
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
McKeon, Hon. Howard P. ``Buck,'' a Representative from
California, Chairman, Committee on Armed Services.............. 1
Smith, Hon. Adam, a Representative from Washington, Ranking
Member, Committee on Armed Services............................ 3
WITNESSES
Chesney, Robert, Former Advisor to the Detainee Policy Task Force 9
Dell'Orto, Daniel, Former Deputy General Counsel and Acting
General Counsel, U.S. Department of Defense.................... 6
Engel, Steven, Former Deputy Assistant Attorney General, U.S.
Department of Justice Office of Legal Counsel.................. 7
Mukasey, Hon. Michael B., Former Attorney General of the United
States......................................................... 4
APPENDIX
Prepared Statements:
Chesney, Robert.............................................. 86
Dell'Orto, Daniel............................................ 60
Engel, Steven................................................ 66
McKeon, Hon. Howard P. ``Buck''.............................. 45
Mukasey, Hon. Michael B...................................... 49
Smith, Hon. Adam............................................. 47
Documents Submitted for the Record:
Testimony Delivered by John O. Brennan, Assistant to the
President for Homeland Security and Counterterrorism, at
New York University School of Law on March 18, 2010........ 111
Witness Responses to Questions Asked During the Hearing:
[There were no Questions submitted during the hearing.]
Questions Submitted by Members Post Hearing:
Mr. Conaway.................................................. 125
Mr. Smith.................................................... 127
TEN YEARS AFTER THE 2001 AUTHORIZATION FOR USE OF MILITARY FORCE:
CURRENT STATUS OF LEGAL AUTHORITIES, DETENTION, AND PROSECUTION IN THE
WAR ON TERROR
----------
House of Representatives,
Committee on Armed Services,
Washington, DC, Tuesday, July 26, 2011.
The committee met, pursuant to call, at 10:05 a.m. in room
2118, Rayburn House Office Building, Hon. Howard P. ``Buck''
McKeon (chairman of the committee) presiding.
OPENING STATEMENT OF HON. HOWARD P. ``BUCK'' MCKEON, A
REPRESENTATIVE FROM CALIFORNIA, CHAIRMAN, COMMITTEE ON ARMED
SERVICES
The Chairman. The committee will come to order. Good
morning.
Much has changed over the past 10 years since the attacks
of 9/11 and the 2001 passage of the Authorization for Use of
Military Force. Changes have been made to the Federal agencies,
laws, and the lives of thousands of our men and women who have
taken the fight to the enemy. We have borne the heavy burden of
losing some of those brave men and women. These Americans,
whether military or civilian, have paid the ultimate price as
part of an effort to prevent terrorists from reaching our
shores. Terrorists still pose a grave threat to the United
States, but they have changed as well.
We now face a diversified threat emanating from multiple
locations. While we believe that Al Qaeda's capacity to launch
widespread attacks has been diminished by the unrelenting work
of our military and intelligence professionals, there are new
and different faces of the same enemy in places like Yemen and
Somalia. Our Government's counterterrorism leaders say that Al
Qaeda in the Arabian Peninsula is now the greatest threat to
the United States. We must acknowledge this reality and move
forward.
When I became chairman, I told our members that the
committee must operate on a wartime footing. This is because,
as Members of Congress, we are charged by our constituents, and
Article I, Section 8 of the Constitution to ``provide for the
common defense,'' ``define and punish . . . offenses against
the law of nations,'' ``declare war,'' ``raise and support
armies,'' ``provide and maintain a navy,'' ``make rules for the
government and regulation of the land and naval forces,'' and
``to make rules concerning captures on land and water.''
It is time to reaffirm Congress' role in identifying the
scope of the current conflict, and just as importantly, it is
time to reaffirm Congress' support for those we have asked to
defend us against the threats we face.
These are the reasons why I believe the House strongly
supported inclusion of the affirmation of the 2001
Authorization for Use of Military Force in the National Defense
Authorization Act for Fiscal Year 2012.
Unfortunately, the Administration has suggested that
Congress is trying to limit options for handling terrorism
suspects. Yet it is the Administration's foreclosure of some of
the most fundamental aspects of this war effort that have
forced Congress' hand. For example, we recently heard Vice
Admiral William McRaven confirm in his testimony before the
Senate that bringing detainees to Guantanamo is ``off the
table.''
A law of war detention system for future captures focused
on intelligence collection and keeping terrorists out of the
United States is essential to our success.
We cannot possibly prefer terrorists to be held aboard Navy
ships, and we cannot possibly be comfortable with the policy
whereby bringing terrorists to Guantanamo is ``off the table,''
but bringing them to the United States is not. In certain
cases, prosecution may also be appropriate for law of war
detainees.
When it comes to deciding the forum for such prosecution,
the Administration has shown time and again that not only is
prosecution in Federal court their overwhelming preference for
current detainees, it is the only option they will seriously
consider for future captures.
The Administration has spent countless hours touting the
Federal criminal justice system. I agree that we have an
excellent court system. I simply disagree that military
commissions, like detention at Guantanamo, should be off the
table for future captures. In fact, the strong preference
should be for prosecution by military commission.
The Administration and their supporters also frequently
cite the number of terrorism cases that have been successfully
prosecuted in Federal court. However, this is not a very
helpful point of comparison given that we do not know how many
terrorists have instead been released and never prosecuted
because of a lack of permissible evidence. Further, the
courtrooms at GTMO [Guantanamo] have sat empty for 2\1/2\ years
at the direction of the Administration. The commission system
cannot prosecute cases that it does not have.
The problem is further heightened when the Administration
delegitimizes the commission system with their words and
actions. Attorney General Holder's reluctant announcement to
prosecute the alleged 9/11 co-conspirators in a military
commission, during which he blamed Congress, comes to mind. Why
would an observer take seriously a forum that the
Administration itself seems to suggest is a lesser system of
justice?
I disagree with this notion. The military commission system
is fair and just, and it should be resourced with the best
personnel our Government has to offer. Instead of undermining
the system, Attorney General Holder and the Department of
Justice should lend their full support and resources to the
Department of Defense, and the military commissions should be
given a real chance to succeed. Perhaps then it will be fair to
compare and contrast it with other systems.
This is not a time for division. The war we are fighting is
against our enemies, Al Qaeda and their associates. It is time
for us to affirm that our enemies and the legal authorities we
have provided to fight them have evolved. So too must our
policies, particularly those dealing with the law of war
detention and prosecution.
And I will yield to our ranking member, Mr. Smith, for his
opening statement.
[The prepared statement of Mr. McKeon can be found in the
Appendix on page 45.]
STATEMENT OF HON. ADAM SMITH, A REPRESENTATIVE FROM WASHINGTON,
RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. Smith. Thank you, Mr. Chairman. I appreciate that we
are having these hearings. I think these are critical issues,
and they are critical issues that have not yet been resolved.
And clearly, the conflict between the way Congress wants to
resolve them and the way the President wants to resolve them
has led to problems, has led to limitations, frankly, on how we
can act, beginning with the situation at Guantanamo Bay.
Part of the reason that the President is reluctant to bring
any future inmates to Guantanamo Bay is because of laws that
Congress has enacted that severely restrict what can be done
with inmates once they are taken there. The larger debate about
whether or not we should keep Guantanamo Bay open I think is
still appropriate to have. I for one think we should close it.
I understand there are those who are on the other side of that.
But even if you feel Guantanamo Bay should remain open, this
current situation is not advantageous to that position, a
situation where if an inmate goes to Guantanamo, he cannot be
transferred to the United States for trial, he cannot even be
sent back to a home country because of the severe restrictions
that have been placed on the President by the previous
Congress, and would continue to be placed on the President by
some of the bills that have been introduced and passed thus
far.
I think we need to clarify the situation one way or the
other, to have a clear policy. And I think the President and
Congress actually agree on one basic principle, and that is all
three options should be on the table. You should have the
option of indefinite detention, you should have the option of
military commissions, and you should have the option of Article
III courts.
How do we keep all of those three options on the table in a
realistic way? I think by and large there is agreement on that
point. There is just a difference about when each option should
be put in place, and that conflict, as I said, has now led to a
very, very difficult situation where all the options are not
realistically on the table.
But, yes, Article III courts have worked, and unfortunately
the bill that we passed out of here and out of the full House
would have severely restricted the ability to prosecute people
in Article III courts. I will perfectly admit that some cases
are not appropriate for that. But we are taking the opposite
approach in this committee and this Congress and saying it is
never appropriate and will not be allowed. That needlessly ties
the President's hands.
And as I think our witnesses will get into in greater
detail and with more knowledge, there are certain advantages to
being able to use Article III courts, and if you take those off
the table you create problems for our variability to prosecute
the war on terror.
So, yes, we need a clear picture on what our detention
policy should be. We need a clear picture on what our
interrogation policy should be. But I feel the cornerstone of
that should be to keep all the options on the table and not
needlessly restrict the executive branch in their ability to
prosecute that war.
We are not there yet. I appreciate the chairman's
continuing to bring this issue up. We have worked very closely
together on trying to work out those details, and I am
optimistic that we will get there, but it is appropriate that
we have this hearing, appropriate that we have this discussion,
so that hopefully we can get to a place where the executive
branch's and the legislative branch's differences don't
restrict our ability to have all the options on the table and
to fully prosecute this war.
I will completely agree with the chairman's statements
about how important this war is, about the fact that Al Qaeda
and their affiliates still threaten us, and we need to be in a
position to counter them. I just differ a little bit on what
the policy should be and the best way to encounter them.
The last thing I want to do, we have remarks by John
Brennan which I would like to submit for the record, without
objection.
[The information referred to can be found in the Appendix
on page 111.]
The Chairman. Without objection, so ordered.
Mr. Smith. Thank you, Mr. Chairman. I yield back.
[The prepared statement of Mr. Smith can be found in the
Appendix on page 47.]
The Chairman. Thank you.
I welcome our great panel of witnesses that are here to
speak on these very important issues today. We are honored to
have with us today the Former Attorney General and Former Chief
Judge of the U.S. District Court for the Southern District of
New York, the Honorable Michael B. Mukasey.
We also have Former Principal Deputy General Counsel and
Acting General Counsel for the Department of Defense, Mr.
Daniel Dell'Orto.
We also have Former Deputy Assistant Attorney General for
the Department of Justice's Office of Legal Counsel, Steven
Engel.
And we have professor Robert Chesney from the University of
Texas Law School. Professor Chesney previously served as an
adviser to the Administration's Detention Policy Task Force and
is a Co-Founder of the Lawfareblog.
A very distinguished panel who are very well versed in our
subject here today, and we are happy to have you with us. Thank
you for being here.
We will hear first from Judge Mukasey.
STATEMENT OF HON. MICHAEL B. MUKASEY, FORMER ATTORNEY GENERAL
OF THE UNITED STATES
Mr. Mukasey. Chairman McKeon, Ranking Member Smith, members
of the committee, I want to thank you for the opportunity to
appear at this hearing, and particularly in the company of the
people who are sitting here who are well informed and well able
to testify on this subject, which is one that is literally of
vital interest to this country--how we can go about defending
ourselves against the threat of Islamist terror, which is the
greatest existential threat to this country since the Civil
War.
The authorities available to us to meet the terrorist
threat are now controlled by what turns out to be a patchwork
of statutes, policy improvisations and court rulings; the
principal statute, the Authorization for the Use of Military
Force is, as the chairman pointed out, 10 years old and was
passed in the immediate aftermath of the attacks of September
11, 2001.
Although two administrations have relied on it for
authority to detain terrorists, the statute does not even
mention the word ``detention,'' let alone set standards for who
to detain, under what circumstances, and where.
We need a statute that helps organize and rationalize the
process, like the one that you have passed, affirming that we
are, in fact, in a global war with shadowy adversaries who do
not follow the rule of law. Our troops need clear authority to
capture and hold dangerous people and to obtain from them, when
possible, valuable intelligence about others of their kind who
may be out there.
I think three recent events dramatize the need for the
statute that you have passed. One is the testimony that was
alluded to by the chairman of Vice Admiral William McRaven, who
made it clear in testimony to a Senate committee that there is
in place no coherent policy with respect to terrorists
encountered abroad, that we are faced with a choice between
killing them, holding them on board ships for a limited time to
obtain intelligence if possible, and then either sending them
to another country that will take them, bringing them to the
United States for trial in a civilian court, or freeing them.
We have also seen the recent disclosure that a man named
Warsame was apprehended in April, held aboard one of our
vessels for 2 months so that intelligence could be obtained
from him, and then given Miranda warnings and brought to the
United States to stand trial in a civilian court.
And, finally, a letter from 20 United States Senators was
all that prevented the Administration from releasing to the
Iraqis a dangerous Hezbollah commander who we have in our
custody in Iraq, even though we have no guarantee that he would
have been tried or held with appropriate restrictions by an
Iraqi administration that is functioning increasingly as a
satellite of Iran the closer we come to pulling our troops out
of Iraq.
The choice among unpalatable alternatives, as described by
Admiral McRaven, is what we face because our commanders do not
have recourse to laws that empower them to capture and hold
people whose principal goal in life is to destroy our
civilization.
A defendant charged with serious terrorist acts is brought
to this country to stand trial in a civilian court, even though
we have on the books a Military Commissions Act that suggests
that he could be tried before a military commission, and even
though we have a state-of-the-art facility at Guantanamo that
can be used to detain and try accused terrorists without any of
the risks of bringing them to this country, and without the
perverse reward to terrorist behavior that is inherent in
treating accused terrorists better than soldiers who obey the
laws of war.
We have a defendant like Warsame, brought to the United
States to stand trial in a civilian court, even though his
accused acts make him arguably eligible for trial before a
military commission--that doesn't seem to have been
considered--and even though we have available that state-of-
the-art facility at Guantanamo, and even though we face hurdles
in the civilian court that make the outcome far from certain as
the result of his having been detained for 2 months aboard a
naval vessel and interrogated before being advised of his legal
rights, hurdles that would not be serious if he were being
tried before a military commission.
And finally, we have a hardened terrorist whom the
Administration proposes to release to Iraqi authorities at a
time when we cannot rely on them to keep him confined and win.
If we cannot continue to hold him in Iraq, we have available
the facility at Guantanamo that we refuse to use.
I am grateful to this committee for considering this
legislation and for passing it to replace and to bolster the
system that we have with a reliable standard for assuring that
dangerous people can be detained in secure and humane
conditions.
And I thank you also for your attention.
The Chairman. Thank you, Judge.
[The prepared statement of Mr. Mukasey can be found in the
Appendix on page 49.]
The Chairman. Mr. Dell'Orto.
STATEMENT OF DANIEL DELL'ORTO, FORMER DEPUTY GENERAL COUNSEL
AND ACTING GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE
Mr. Dell'Orto. Thank you, Mr. Chairman, Ranking Member
Smith, and members of the committee for your invitation to
appear before the committee today. It is an honor to once again
appear before this committee, this time in my individual
capacity.
I commend the chairman and the committee for addressing the
issues that are the subject of this hearing. I also am honored
to appear with Honorable Judge Mukasey and with Steve Engel,
with whom I had the privilege of working during my time in
Government, and both of whom I hold in the highest regard.
As some of you may recall, as a civilian attorney I served
as the Principal Deputy General Counsel of the Department of
Defense from June 2000 through March 2009, not long after I
completed a 27\1/2\-year career as an Active Duty Army officer.
I was in the Pentagon on 9/11, and thereafter participated in
the formulation of the legal positions that the Department
adopted in the aftermath of 9/11, including those relating to
the interpretation of the Authorization of the Use of Military
Force, the legal basis for the conduct of operations against Al
Qaeda, the basis for detention of captured enemy combatants,
the decision to establish the detention facility at Guantanamo,
and the implementation of President Bush's military order of
November 13, 2001, which created military commissions.
The Authorization for the Use of Military Force of
September 18, 2001, has served the Nation well. Nevertheless,
at the 10-year mark, it is appropriate to consider whether
there should be a reaffirmation of that authorization and
appropriate amendment.
From the beginning of our fight against Al Qaeda, well
before 9/11, it has been apparent that we are at war against a
nontraditional enemy. The nontraditional nature of our foe has
required resourcefulness by every entity of our national
security structure from the rifleman on the ground in
Afghanistan all the way up the chain of command to the
President in his role as Commander in Chief.
As the enemy has changed its tactics and the locations of
the planning for and conduct of its attacks, the rifleman and
his commanders at all levels have had to be nimble and
adaptable in the face of the many challenges that this
nontraditional foe has thrown at us.
To the extent that the aAuthorization for the Use of
Military Force falls short of providing the President and his
subordinate commanders with the full range of authority he and
they need to bring the fight to this changeable foe, then it
should be adjusted to do so.
As one who has advised and aided senior civilian and
uniform leaders at the Department of Defense as they wrestled
with the decisions related to the detention of enemy
combatants, the establishment of the detention facility at
Guantanamo and the structure of military commissions, I remain
firmly supportive of those initial decisions and remain
convinced that those decisions were correct at the time they
were made.
There is absolutely every reason to continue to move
important detainees to Guantanamo for detention and
intelligence gathering. And I remain firmly convinced that the
military commissions should be the preferred forum for the
adjudication of the war crimes committed by those who have been
waging war unlawfully against our Nation and its citizens.
I am prepared to respond to your questions. Thank you.
[The prepared statement of Mr. Dell'Orto can be found in
the Appendix on page 60.]
The Chairman. Mr. Engel.
STATEMENT OF STEVEN ENGEL, FORMER DEPUTY ASSISTANT ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE OFFICE OF LEGAL COUNSEL
Mr. Engel. Thank you, Chairman McKeon, Ranking Member Smith
and members of the committee.
I appreciate the opportunity to appear here today to
discuss the legal framework for the war on terror now nearly 10
years after the attacks of September 11.
And I am particularly honored to appear beside Judge
Mukasey and Mr. Dell'Orto, two extraordinary public servants
with whom I had the privilege of working during my time at the
Department of Justice.
On September 11, Al Qaeda took the United States by
surprise, and the legal framework for this conflict has taken
the better part of a decade to catch up. The traditional laws
of war are premised upon principles of reciprocity and the
distinction between combatants and civilians. That framework
provides clear answers to who may be detained, how they must be
treated, and where they should be prosecuted.
None of these answers is self-evident when it comes to the
nontraditional enemies against whom we fight in the war on
terror.
The committee, in enacting the National Defense
Authorization Act for 2012, has taken an important step forward
in addressing these questions. Section 1034, in particular,
would update the statutory authorization for this conflict by
codifying the definition of who we are fighting, that the
executive branch, over two administrations now, has relied upon
in this conflict.
The Act would affirm that the United States is engaged in a
continuing armed conflict with Al Qaeda, the Taliban, and
associated forces, and that in this conflict the President may
detain those who are a part of or who are substantially
supporting the enemy.
None of this should be controversial. The Obama
Administration currently relies on these very same words in
fighting this war, and these words have been vindicated by the
D.C. Circuit. Yet some have claimed that congressional
authorization could constitute a new declaration of war that
would dramatically expand the conflict.
I confess that I do not understand this. Congress already
has authorized the President to wage war against Al Qaeda and
its supporters wherever they may be found. One week after the
September 11 attacks, Congress granted the President the
current statutory authority under the Authorization for the Use
of Military Force, the AUMF. By its terms, this statute was not
limited to Al Qaeda, and it was not limited to Afghanistan.
Rather, Congress authorized the President to take the fight to
the enemy, no matter where they were, or where they spring up
over time.
Over the past decade, U.S. forces have done just that,
fighting Al Qaeda in Afghanistan, in Pakistan, and its
affiliates in places such as Iraq, Yemen, and Somalia. In the
course of that conflict, the United States has captured Al
Qaeda members in those countries, and many others, and has
detained them under the laws of war. Section 1034's definition
of the enemy thus does nothing more, but also no less, than
give the President's interpretation the force of law.
The statute is needed because the AUMF was appropriately
focused on the September 11 attacks, yet over the past decade,
the threat from Al Qaeda and like-minded organizations has
developed in new and different ways. It is no doubt reasonable
for the President to classify Al Shabab, the Pakistani Taliban
or Al Qaeda's homegrown franchises in Iraq or Yemen as part of
the same enemy with whom we are at war under the AUMF. But as
the United States continues its military operations outside of
Al Qaeda's original hideouts in Afghanistan and its litigation
challenges emerge to such decisions, as they inevitably will,
it becomes increasingly important for Congress to weigh in. In
the absence of a clear statement from Congress, the courts may
well have the last word in determining whom we may detain, and,
by extension, whom the military may target.
I appreciate the committee bringing attention to these
issues. And I appreciate the committee putting this issue in
the forefront of the National Defense Authorization Act. That
statute will strengthen the Administration's hands in the
courts and will strengthen our military's ability to take those
measures necessary to protect our national security.
Thank you, Chairman McKeon and Ranking Member Smith, for
the invitation to appear here. And I look forward to our
discussion this morning.
The Chairman. Thank you very much.
[The prepared statement of Mr. Engel can be found in the
Appendix on page 66.]
The Chairman. Professor Chesney.
STATEMENT OF ROBERT CHESNEY, FORMER ADVISOR TO THE DETAINEE
POLICY TASK FORCE
Mr. Chesney. Chairman McKeon, Ranking Member Smith, and
members of the committee and staff, thank you for the
opportunity to testify today.
My aim is to convince you that the optimal policy is one in
which the President has, and is willing to use, the maximum
range of lawfully available tools when it comes to capturing,
getting intelligence from, and ensuring the long-term
incapacitation of terrorists.
Toward that end, I want to make three points:
Point one. Civilian criminal prosecution in some instances
is the most effective tool for ensuring the long-term detention
of a terrorism suspect. Congress should not take this tool out
of the President's hands. This can be true for several reasons,
one of which is illustrated by the Warsame case. Simply put,
the civilian trial option will not require the Government to
prove the details of the relationship among Al Qaeda, Al Shabab
and Al Qaeda in the Arabian Peninsula. This is something the
Government no doubt can do in a closed-door setting, in a
classified briefing, but may well prefer not to do outside of a
SCIF [Secure Compartmentalized Information Facility] in the
interests of protecting sources and methods, and in order not
to reveal the current state of our penetration of these
networks.
A military commission trial, in contrast, might require
such a showing in order to establish personal jurisdiction over
Warsame. In such a showing, we would also likely be required
eventually, were we simply to hold Warsame in long-term law of
war detention at Guantanamo or elsewhere, as it is more likely
than not that a person captured in his circumstances would
eventually establish the right to habeas review.
Of course, there are other factors relevant to the decision
as to which system makes the most sense for long-term detention
in a particular case. And I discuss these other factors in
considerable detail in my written testimony. For now it
suffices to say that one size doesn't fit all, and it doesn't
make sense to make an across-the-board predetermination to the
contrary.
Now, that is true for all of the lawfully available
options, which brings me to my second point. Other options that
are lawful in certain circumstances include both trial by
military commission and, separately, the use of military
detention consistent with the law of war. In some instances in
fact, one or other of those options will be the most effective
tool available to incapacitate a dangerous person for the long
term. When that is the case, and even if Guantanamo is the only
practically available location for using them, the
Administration should be willing to use these options and not
just for legacy cases. That is to say, the President shouldn't
take these tools out of his own hands going forward.
Now you will notice so far I have only been talking about
the options for long-term detention. I have not been talking
yet about collecting intelligence, and that brings us to my
final point. The question of how best to detain over the long
term and the question of how best to acquire intelligence from
a captured person are two different matters, and the answer to
one does not dictate the answer to the other.
For example, selecting civilian criminal prosecution, the
best tools for long-term detention in a particular case, by no
means obliges the Government to Mirandize the person upon
capture, to cease questioning if the person asks for a lawyer,
to employ only law enforcement personnel as questioners, or
otherwise to treat a terrorism suspect as if it is a run-of-
the-mill criminal or questioning is merely designed to obtain
evidence admissible in court. Far from it.
As Warsame illustrates, in terrorism cases one can and
frequently should prioritize intelligence collection on the
front end, even though this wouldn't be ideal from the
standpoint of a possible prosecution on the back end. But it
doesn't follow that you just can't prosecute on the back end or
that you somehow shouldn't prosecute on the back end.
What does follow, I think, is that all of these decisions
require nuanced professional case-specific judgments with
participation from the military, the Intelligence Community,
and the Justice Department, and of course they also require
access to the full slate of legally available tools and the
will to use them.
In conclusion, let me emphasize that my written statement
goes into far more detail on all of this, and it also addresses
a range of other issues raised by the Warsame case, including
matters such as detention on naval vessels and the law relevant
to ICRC [International Committee of the Red Cross] notification
and access.
I look forward to your questions and I thank you very much
for your sustained and serious attention to this important
issue.
The Chairman. Thank you very much.
[The prepared statement of Mr. Chesney can be found in the
Appendix on page 86.]
The Chairman. Our committee vice chair needs to leave to go
to another hearing so I am going to turn my time over to him at
this time. Mr. Thornberry.
Mr. Thornberry. Thank you, Mr. Chairman, and I appreciate
each of you all being here today. There is a number of issues
and ramifications at stake in what we are talking about, but I
want to focus on the first and most basic issue, and that is
whether Congress should affirm and update the Authorization for
the Use of military Force that was passed in September 2001.
And as Mr. Engel referenced in his testimony, there has
been some criticism of the section in the House-passed bill,
section 1034. Some people say well, the courts--you are just
adopting the court interpretation of the AUMF, so you really
don't need to do it, it doesn't change anything, just let the
courts continue to adapt and interpret the September 2001
authorization.
A second criticism, which is kind of coming from the
opposite way, is that, oh, this is a vast new expansion of
power with no limits of time or geography.
So I would appreciate each of you giving us your opinion on
whether Congress should affirm and update the authorization for
the use of military force and whether you think either of those
criticisms have merit; do you think that it is okay for courts
to interpret when the United States can use military force; and
are you concerned about some vast expansion?
And Professor Chesney, if I may, since somebody from the
University of Texas Law School, welcome, I would ask you to go
first.
Mr. Chesney. Thank you, sir, that is a great question. And
I have two main points I want to make in response to it.
First, one of the issues that lurks in the background that
we have not probably paid enough attention to is the fact that
the existence of ongoing relatively conventional conflict in
Afghanistan has made it relatively easy for everyone to agree
that there is at least some combat going on somewhere that
entitles us to detain somebody. It is entirely foreseeable that
in the next year or two, for better or worse, that may not
still be the case. And when that situation develops, when--that
is, our situation in Afghanistan, similar to our current
situation in Iraq, we are drawing down, we are leaving, we are
no longer engaged in sustained combat operations, there will be
an argument that will emerge that there is no longer authority
under the original AUMF to detain anywhere.
I think it would be a very smart move on the part of
Congress to clarify that for purposes of our domestic law, we
do not condition our detention authority with respect to Al
Qaeda on the existence of combat operations in Afghanistan. And
this is something that Congress could head off by making clear
there is detention authority, and it is not linked in that way.
A second issue is the question of whether it is even
possible by statute to tamp down the debate over what is the
scope of the authorization. Everybody agrees Al Qaeda counts,
the Taliban counts. But when push comes to shove and people
start getting down in the weeds, they often don't really agree
about what they think the boundaries of Al Qaeda actually are
and whether it encompasses various affiliated groups.
The question of the moment, as the chairman indicated in
the opening remarks, AQAP, Al Qaeda in the Arabian Peninsula,
may be the greatest threat we face. There is debate about the
extent to which it is encompassed by the existing AUMF. The
Administration takes the position, I believe, that AQAP is
effectively part of Al Qaeda. And that may be the right
interpretation. There is going to be debate about that. It is
not clear if and when there is an AQAP detention that the
courts necessarily will agree with that. It might be wise to
eliminate that sort of uncertainty. But then you have even more
difficult groups like Al Shabab where the ties, whatever they
are, are relatively looser by a considerable amount as they are
as between Al Qaeda and AQAP.
In that circumstance, a difficult question that I am not
sure can be eliminated by statute will remain as to which
groups are sufficiently associated with the AUMF-named groups
to count.
The current House-passed version of the NDAA confirms the
Administration's position that associated forces, co-
belligerants, are encompassed but it doesn't actually define
that term. And I am not exactly sure how best to define that
term. That may be some indeterminacy that is just built into
this framework.
Mr. Thornberry. Mr. Engel.
Mr. Engel. Sure. Thank you.
As I mentioned in my opening remarks, I think it is very
important that Congress take this on. Essentially, the AUMF
isn't only about who we detain; it has been elaborated and
interpreted by the courts in the context of the Guantanamo
habeas litigation, but it also affects who we target. So it
basically is a definition of who we are fighting in this war.
And I think it is very important and appropriate in our
constitutional structure that the political branches, and
particularly Congress, take a lead role in making these
determinations.
When we talk about what are the courts saying, what are the
courts doing, the courts are trying to figure out what Congress
meant when it passed the AUMF almost 10 years ago now. And I
think it is very important and appropriate for Congress to
weigh in and to clarify basically by making clear it agrees
with the views of the executive branch, because this goes
really to the heart of who we are fighting and our national
security.
Mr. Thornberry. Thank you. Mr. Dell'Orto.
Mr. Dell'Orto. I would echo what Mr. Engel and Professor
Chesney have said. I think one the keys here is that we need to
be looking forward rather than rear-ward, and to the extent
that we have demonstrations of how Al Qaeda and its branches
and sequels are unfolding, we need to be prepared to address
that.
And I think that anything that would limit the scope of our
activities to certainly Afghanistan, would put us in a position
where we will not be ready for the emergence of the next branch
or sequel. And in point of fact, it would acknowledge what we
are doing today. We have these operations taking place in many
parts of the world. And I think we need to maintain the
authority to do so.
I also agree that the courts should not be the place where
there this is determined. I think the courts rightfully--they
have been drawn into this somewhat reluctantly, I think--are
doing their best to interpret what Congress has established by
way of the law, and the more clarity we can establish through
legislation I think the better off everyone will be.
The Chairman. Judge.
Mr. Mukasey. I agree with the comments of the prior
speakers. I would add only two things. First of all, this
question of what it is that allows us to continue to detain has
not been passed on by the courts as yet, and I think that
Professor Chesney makes an important point in saying that we
ought to head that off right now, because having that argument
advanced could result in freeing an enormous number of people
who should never see the light of day.
Secondly, the notion of defining a list of organizations
that are against us, and then checking whether somebody is or
isn't on the list, and making targeting decisions on that basis
and capture decisions on that basis, simply doesn't work. Al
Qaeda and those associated with them don't care who is on the
list, and this is not a motorcycle gang who wear jackets that
are emblazoned with a particular label, and as soon as we kill
off everybody who is wearing a jacket, we win. They didn't care
on 9/11 whether we had anybody on a list or not, and they are
not going to care now.
You need to look no further, I should say, than the Times
Square bomber, Faisal Shahzad, when he was captured. It turned
out he was associated with the Pakistani Taliban that wasn't on
the list, and there was actually a debate about whether we had
authority to hold him. That shouldn't happen.
Anwar al-Awlaki was self-radicalized in the United States,
is now in a leadership position in AQAP, again somebody who may
not neatly fit a category, but somebody who is undeniably at
war with this country. And we should be equally free to oppose
the people who are at war with us.
Mr. Thornberry. Thank you.
The Chairman. Thank you. Ms. Bordallo.
Ms. Bordallo. Thank you, Mr. Chairman.
And, Mr. Chesney, my first question is for you. You
observed that a military commission trial, one, may not have
proper jurisdiction or available charges to try someone like
Warsame; and, two, may pose additional risk of revealing
sensitive intelligence information because of all the
additional evidence needed for military commissions'
prosecutors to establish jurisdiction over suspects like
Warsame. Can you elaborate on these points?
Mr. Chesney. Yes, ma'am. The point I was trying to get at
is one that is not necessarily going to arise in many, or even
most cases, that would be part of the civilian trial versus
military commissions debate. But it does seem to be one that is
raised here, and there has been intimations in media accounts
that this was part of the internal analysis.
In a military commission proceeding, there is a statutory
personal jurisdiction requirement that is a bit complicated,
and I won't get down into the details of it. Suffice to say,
that there does need to be certain showings made to ensure that
this is a person within the scope of the armed conflict that is
at issue here, someone engaged in hostilties, or an Al Qaeda
member and so on and so forth.
The factual predicates that are built into that showing are
not identically repeated in a civilian setting where you are
simply charging the person with having provided material
support to one of these groups or having--I believe the charges
in this case include bearing arms while doing so, and then
instructing others in how to make explosives and receiving
military-style training.
In short, it is possible that in order to establish
jurisdiction in a commission proceeding, the Government would
need to reveal more than it would in a civilian court regarding
the existence of a relationship between some or all Al Shabab
members, possibly just some; Al Qaeda in the Arabian Peninsula,
which seems to be the liaison relationship that Warsame was
involved in; and the relationship of both of those two with Al
Qaeda proper. That doesn't necessarily need to be done, and in
fact probably does not need to be done in a civilian trial.
Now that, as I mentioned in my testimony, is not the only
consideration that matters here, but it is a substantial one,
and one can readily imagine that the Intelligence Community
might have preferred, all things being equal, not to be put in
a position where it has to decide whether to come forward with
the evidence that fleshes out the relationship amongst these
groups.
Ms. Bordallo. Thank you.
Mr. Mukasey, my next question is for you. You are critical
of holding terrorism trials in Article III, because you claim
that such trials would reveal sensitive national security
information. However, what we know is that the Government has
carefully crafted tools under the Classified Information
Procedure Act, or CIPA, that allows sensitive national security
information to be protected. As a result, one study after
another of international terrorism cases have shown that in the
hundreds of terrorism trials that have taken place in Article
III courts, sensitive national security information has never
been revealed when the Government uses the tools made available
to it under CIPA. In fact CIPA works so well that the military
commissions have modeled their classified information
protection rules on CIPA.
Given these facts, why do you continue to believe that
classified information would be better protected in military
commissions which have little experience handling sensitive
information, than in Article III courts which have almost three
decades of experience handling sensitive national security
information?
Mr. Mukasey. I believe it, based on my own experience, and
based on the trials of which I am aware.
The case, the terrorism case that I tried, United States
versus Abdel Rahman, et al., started out with the Government
having to provide, as it does in all conspiracy cases, a list
of unindicted co-conspirators. That necessarily included all
the people that the Government was aware were associated with
the defendants in that case. It included a then-obscure man
named Osama bin Laden. We found out later on that within 10
days of the service of that list, it was in the hands of Osama
bin Laden in Khartoum, where he was then residing, and he was
then able to determine not only that we knew about him, but who
else within his organization we knew about, and to take
appropriate action. And from every account he did.
There are other instances of testimony coming out in
criminal prosecutions that is later used as virtually a
smorgasbord by terrorists. In addition, the need to keep agents
from testifying to classified information is something that the
Government feels, but obviously defense lawyers do not feel it,
and shouldn't feel it. That is not their job. And so they will
push to the limit, with the result that Government agents will
appear to be and have appeared to be evasive or restrictive in
their testimony and in their responses in a way that colors
criminal prosecutions that would not happen in a military
commission.
And as far as having to reveal means and methods in the
military commission, I have to say that I am, frankly,
mystified by Professor Chesney's testimony on that point. If
you think that a military commission presents difficulties in
the Warsame case as compared to what is going to happen in a
civilian court, I can give you two words of advice, ``stay
tuned.''
Ms. Bordallo. Thank you. Thank you, Mr. Chairman. I yield
back.
The Chairman. Thank you. Mr. Bartlett.
Mr. Bartlett. Thank you. Nearly 19 years ago, before I came
to the Congress, I must confess that when I heard the term
``military tribunal'' or ``military commission,'' it conjured
up images of a banana republic, a trial at midnight, and
execution at dawn. If I had been asked to give an example of a
kangaroo court, I probably would have said a military tribunal.
Now, 19 years later, nearly 19 years later, having been on
this committee, I have a very different view of our military
commissions.
But where we house our prisoners and where we try them is
in a large sense a political decision. Not every citizen of the
world has had the opportunity I have had to sit for nearly 19
years on this committee. So how does the average citizen of the
world perceive military tribunals? In politics, of course,
perception is reality.
So what is the perception of the average citizen of the
world about military tribunals?
Mr. Chesney. May I?
One of the most interesting things about the military
commissions perception issue, which I completely agree is a
terribly significant one, is that we are not doing the best we
could to let the rest of the world know how legitimate and just
the system, as you have just described it, is.
Part of the problem is that it is very difficult for
outside observers to know what is actually happening in the
proceedings as they go on. The small number of reporters and
interest groups that send personnel down there to monitor what
is happening provide some outside access to what is happening,
but not nearly as much access as could be to our interest.
It would be very advisable for the Department of Defense to
make it far more transparent what is happening there, including
great expansion of the amount of closed-circuit coverage and
availability, including here in the Washington area, for more
than just a small number of reporters and journalists to
monitor these proceedings. There will be a good story to tell,
I believe, but we are not putting most people in a position to
actually hear it. It is all getting filtered through a small
number of observers who are, in many cases, very critical of
the system.
Mr. Bartlett. Emphasizing the importance of perception,
General Petraeus in a not private, but not really public,
conversation indicated the enormous problems that Guantanamo
Bay created for him in his area of responsibility in the
military.
Let me read something from what we passed in the Congress
nearly 10 years ago now. ``The President also has the authority
to detain persons who were part of,'' I have no idea how the
President would know they were a part of something without a
trial and a jury and a verdict, ``or substantially supported
Taliban or Al Qaeda forces or associated forces that are
engaged in hostilities against the United States or its
coalition partners.''
If I just take those first few words, absent the emergency
that we were in at that time, wouldn't you have thought that
this was pretty patently unconstitutional to say that the
President could, without any court action, without any trial,
determine that a person were part of a substantially supported
Taliban or Al Qaeda forces and therefore detain them
indefinitely, without any counsel, without any opportunity to
defend themselves?
Mr. Dell'Orto. Congressman Bartlett, let me at least take a
stab at that. Again, if you premise the authority on laws of
armed conflict and the law of war, then clearly, the President
has the authority, as do the subordinate commanders, to make
those determinations on the battlefield. And that is exactly
what was done from day one. The detention authority stems from
the authorities pursuant to the recognized international law of
armed conflict and----
Mr. Bartlett. But, sir, isn't the battlefield here
essentially anywhere and everywhere?
Mr. Dell'Orto. Well, I think in certain respects it is,
Congressman, because the enemy has shown an ability to project
its force from virtually anywhere to here, as contrasted to
previous conflicts where there was essentially somewhat of a
geographic limitation on the enemy's positioning and the
locations from which he projected his force. Certainly we got
used to the notion of a geographical limit on some of that, on
the conflict.
Here, we have an enemy who moves about and may launch his
attack from Afghanistan, may launch it from Pakistan, may
launch it from Somalia, Yemen--and we have seen that. We have
seen that with the Cole bombing and other instances where this
enemy pops up and fights at a place of his choosing.
And so I think that the authority to detain very reasonably
can be applied to a variety of areas that are not necessarily
well defined by a nation's geographic boundaries.
Mr. Bartlett. Thank you.
Mr. Mukasey. If I could just add one point to the answer
that has been given so far. First of all, the choice of the
battlefield was not ours. That choice was made by the people
who launched attacks against us. And we can, if we wish, limit
the battlefield for our own purposes, but it is not going to
limit it for theirs.
Secondly as Mr. Dell'Orto pointed out, assault takes place
in the context of the laws of war. The laws of war recognize
that people who wear uniforms, follow a recognized chain of
command, carry their arms openly, and don't target civilians,
are entitled to a certain level of treatment when they are
captured, and they receive that level of treatment. But these
people don't do any of these things. And the old rule was that
if such a person was captured, they could be treated as the
books said, summarily; which generally meant stand up against
this wall and we will be with you in a moment. Now we have come
substantially beyond that. But we are by no means obligated to
bend ourselves into pretzels to treat people in that situation
the same way that we treat ordinary criminal defendants. Not at
all.
The Chairman. Did I hear you had an occasion, some special
thing happen to you last week?
Ms. Sanchez. That is correct, Mr. Chairman.
The Chairman. Did that change your name or anything?
Ms. Sanchez. No, I am keeping the same name, the same name
I have had since I was born. So thank you. Thank you very much,
Mr. Chairman.
The Chairman. Congratulations.
Ms. Sanchez. I wanted to give Professor Chesney a chance to
direct some comments to the whole issue of the Article III
versus military commission question that was put forward. Would
you like to do that?
Mr. Chesney. I would like to address one point, because I
think it may be that Attorney General Mukasey may have
misunderstood my point earlier about the particular issue
raised in the Warsame case. I wasn't suggesting that civilian
criminal trials have better capacities to protect sources and
methods than military commissions do. It is at least equal, and
perhaps the military commissions are slightly better at this
because they have had a chance to codify things about CIPA that
are generally done in practice now by the civilian courts, but
aren't in CIPA itself.
But, rather, my point was that the actual substance of what
needed to be proved would be different in that particular case.
That is, Warsame, under the indictment that has been brought in
the Southern District of New York, what the Government needs to
prove in that instance doesn't require in any way to try to
prove anything about the relationships amongst these various Al
Qaeda and Al Qaeda franchise entities, whereas in the military
commission process, regardless of what charges were brought by
virtue of the personal jurisdiction provisions, will require
such proof.
That is one way in which you could have a serious
difference between the two systems. I don't think that is a
frequently recurring situation, but I think it arose in this
instance and would arise in any Al Shabab, AQAP, or other non-
core Al Qaeda, non-core Taliban-type case.
Other issues that are worth keeping an eye on that this
committee should be aware of include the difference in the
substantive charges available in the following respect. There
is ongoing litigation as to the legitimacy of charging material
support and conspiracy in military commission proceedings. In
particular, it is a quite open question, if not a doubtful
question, as to whether the D.C. Circuit or the Supreme Court
at the end the day ultimately will allow the commissions to
charge material support and conspiracy for pre-2006 conduct.
The current state of play is that an intermediate military
court, the Court of Military Commissions review, has upheld the
constitutionality or the legality of charging material support,
but this is just the beginning of years of litigation that are
still in our future. The D.C. Circuit will have the next crack
at it, and beyond that if the Supreme Court grants cert, it
will decide the question.
There is some reason to believe, and I think a lot of
people who have looked at this closely think it is at best a
50/50 call how the Supreme Court ultimately will come down on
this. If they come down negatively on this as to a lot of the
earlier cases, not going-forward cases, but the existing legacy
cases, this will take away a pretty important tool in the tool
set for prosecuting in a commission setting. This doesn't
affect all the cases; it affects some of them.
Ms. Sanchez. Okay. Well, first of all, I think that even
though we have had some people since directly after 2011, after
we declared--or the President declared the Global War on
Terror, and we have people still detained, I have a hard time
believing that most of those people that we have left are
actually even going to come forward into some sort of a
process, if you will.
But I have been one of the few Democrats, I think, on this
committee that has advocated for keeping Guantanamo Bay open
and for military commissions. I am one of the few people, I
think I was the first one to drop a bill, maybe about 2 or 3
years before the Hamdan case ever came down, and required this
committee to at that point act. But I wouldn't preclude the
fact that I think that we should keep both systems open and
available to doing this.
My question, and the reason I think commissions is a great
place to try a lot of it is because of several issues,
including fog of war, evidentiary chain requirements, Miranda
rights, if you will, a whole host of things that are introduced
once one takes a look at the Federal system, and I think don't
work well within some of the issues that go on with respect to
the types of people and where we pick them up and how we pick
them up.
And I guess the two questions that I really have that I am
hoping you all can sort of enlighten me on is what difference
has that made with the Court's ruling that GTMO is now a
special place and inures with it some special rights to the
people that we have had held there, as opposed to before.
And the second issue is, what do you think--understanding
that I think most of these things would be best held in the
military system, where do you think are some of those
situations that would be better placed within our Federal
system?
Does anybody want to take a crack at those two questions?
Mr. Engel. With respect to your first question, in terms of
the impact of Boumediene and the Supreme Court's holding that
the constitutional right of habeas corpus applies to Guantanamo
Bay, that is some issue that now almost 3 years after
Boumediene the courts are really still working it out. The
Supreme Court held that it had jurisdiction, you know, that the
Federal courts had jurisdiction, but it did not elucidate and
consciously reserved the question of what other rights would
apply to Guantanamo Bay. And that is something that the Federal
district courts have, in developing habeas procedures, have
been sort of all over the map, and they have gradually been
corralled by a number of D.C. circuit decisions which has
provided some content at least to the substantive standard for
habeas.
Now, none of that answers fully what would apply in a
military commission process and the like. Those are questions
that the military commission courts have been working out, and
they have taken something of a case-by-case basis where they
look at whether the procedural rights at issue are fundamental.
And they have generally held that the processes that this
Congress has provided in the Military Commissions Act in 2006
and 2009 are sufficient, you know, with some glosses here and
there. But these are issues that are still working their ways
out in the court.
What is clear, of course, is that if individuals were in
the United States, they would have a full panoply of rights.
And while that may permit commissions to go forward in the
United States, it would raise, you know, much more severe----
Ms. Sanchez. Obviously. And that is one of the reasons why
I think it is best to keep them in the military commissions if
we can.
Do you think it would be--that there would be a place for
this Congress to delineate, not wait for the courts to sort of
apply what those rights might be?
Mr. Engel. Well, I think that this Congress really has done
so with the Military Commissions Act in 2006, 2009. Mr.
Bartlett mentioned earlier about his image of military
commissions and military courts. I think this Congress has
provided the most developed procedures, the greatest amount of
due process I think that we have ever seen in any kind of
military commission system.
And so, you know, I would submit that Congress has weighed
in and has provided appropriate protections under any
constitutional standard. But, certainly, if there is tinkering
to be done, those are questions for this body to consider.
Ms. Sanchez. Thank you, Mr. Chairman. I realize that my
time is done, and I hope that I can submit that other question
to the record for the gentleman before us to try to answer.
Thank you.
The Chairman. Thank you.
Mr. Wittman.
Mr. Wittman. Thank you, Mr. Chairman.
I would like to thank the panelists for joining us today.
Judge Mukasey, it seems like the Administration's policy
for evaluating detainees for transfer seems to have a little
inconsistency there. And I want to ask a comparison, to look at
the policy that is used for the transport-release of someone
like Mr. Warsame in the case where he was detained on a ship
versus other evaluations such as for GTMO.
And if you could give me your opinion on where you believe
the differences are there. And is there a reason for the
difference from a legal standpoint? And in electing to release
a detainee from the ship, should the potential for reengagement
be considered or the possibility of reengagement be mitigated
in consideration of both of those, I would say, divergences in
policy with relation to detainees?
Mr. Mukasey. Well, let me answer your last question first.
The possibility of reengagement always has to be considered.
The whole purpose of capture in a conventional war--and it
would be only underlined in an engagement like we are in with
these folks--is to immobilize somebody who is dangerous and
prevent them from returning to the fight. A catch-and-release
program is the last thing in the world that you want.
So far as Warsame is concerned, the sense I have is that
that was something of a--obviously, I don't have a window into
the decisionmaking process in the current Administration. But
the sense I have is that that was somewhat of an innovation and
of an improvisation, in some measure in response to the
legislation that barred the transfer of detainees from
Guantanamo to the United States. They didn't put him in
Guantanamo. They held him on a ship, debriefed him for some
period of time, and then brought in a clean team to give him
Miranda warnings and then bring him to the United States.
I should add that, as it happens, paradoxically, holding
somebody on a ship is itself arguably a violation of one
section of the Geneva Accords. Now, whether that is a section
that applies to people like this at all, I would argue that it
doesn't, but it just shows you how problematic that whole
process is. And we can't continue to make these decisions ad
hoc. We need to have a systematic way of assuring, principally,
our safety; secondly, our intelligence-gathering capacity. And
everything else, in my view, follows from that.
Mr. Wittman. Thank you.
I want to follow up on your comment about our intelligence-
gathering capacity. With what has taken place with Mr. Warsame,
are we limiting our military and intelligence operatives'
options with detention of known terrorists by pursuing this
particular policy? And with leadership in SOCOM [Southern
Command] and the CIA [Central Intelligence Agency], are they
going to be forced to let detainees go if they aren't able to
get that information, especially with this particular tenet
that they are pursuing with detainee policy?
Mr. Mukasey. Well, I think the question of letting
detainees go and of gathering intelligence are, in a sense,
separate.
Regrettably, in my view, the CIA program was abandoned
entirely, and, instead, what we have told the rest of the world
is that the Army Field Manual now sets the limit for any
interrogation by any U.S. Government employee. The Army Field
Manual has been used as a training manual by terrorists for
years. And I think what we need is a classified interrogation
program to be run by people who are trained in the running of
it, so that people we capture don't know precisely what they
have to expect. And we can get a whole lot of intelligence a
lot easier that way.
There are people who were captured by the CIA who didn't go
into their program at all, who, upon capture, said, ``I know
who you guys are, I don't want any part of that, and I am
perfectly willing to cooperate,'' and did. But if you limit
yourself in that fashion, then you are really tying your own
hands.
Mr. Wittman. Let me ask one final question. Does a coherent
detention policy include subordinate policies on detainee
transfer and release? And, if so, how would you believe
transfer-and-release policies minimize the possibility of
reengagement?
Mr. Mukasey. I think if you have a place to take people,
evaluate them in a calm setting, that that is optimal. You are
going to find at some point whether--I mean, you may very well
find that somebody who was dangerous when he was apprehended
has become, for objective reasons having nothing to do with his
particular mindset, less dangerous because his friends are gone
and is somebody you can release, or you may find another
country willing to take him. But you certainly can't do that
with the wind blowing in your face under a deadline that says,
we are going to find this out in 2 months or else we are going
to let him go.
Mr. Wittman. Very good. Thanks, Judge Mukasey.
Mr. Chairman, I yield back.
Mr. Bartlett. [Presiding.] Thank you.
Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
I think one of the things that we should acknowledge,
looking at this, is, no matter which way you go, there are
uncertainties. And I think one of the things that both sides
have done is, well, gosh, if we did your plan, then we wouldn't
know what was going to happen in this instance. I mean, we are
in uncharted territory. I mean, just talking about this, as Mr.
Engel said, you know, it is not clear what rights exist at
Guantanamo. They are being constantly interpreted by the
courts, and that could pop up and create a problem.
You know, military commissions are a relatively new thing.
I think we have only prosecuted--help me out here--we have only
prosecuted, like, one or two folks under military commissions
at this point, and those were both guilty pleas, I believe. We
haven't gone through a full trial with a military commission.
Mr. Engel. We have gone a little bit above that. I think
there may be four or five and couple of trials----
Mr. Smith. Okay.
Mr. Engel [continuing]. But your point is well-taken.
Mr. Smith. It is still being interpreted. So no matter
which way we go here, because of the, you know, unique nature
that I think all witnesses testified to of the fact that this
is an enemy that the law, frankly, didn't contemplate, and
certainly the law of war, so we have to improvise and go
forward, so I think we need to keep that in mind as we look at
the options.
You know, keeping all the options on the table, I think one
of the biggest restrictions right now that we haven't talked
that much about--and, Mr. Mukasey, if you could comment on
this--the restrictions that have been placed on people once
they are in Guantanamo. And this is because Congress opposed
the closing of Guantanamo and was looking for ways to make sure
that the President couldn't do that. And that is perfectly
appropriate, from a legislative standpoint.
But in placing severe restrictions on when anyone from
Guantanamo can be transferred back to a home country and
placing an absolute bar on those inmates ever being transferred
to the U.S. for trial, if an inmate is transferred to
Guantanamo at this point, the President's hands are tied. And
that is a big factor in their reluctance to send someone to
Guantanamo.
Now, the Administration has said--and Admiral McRaven does
not necessarily speak for the entire Administration--has said
that they have not taken it off the table, and, in certain
circumstances, in high-profile cases, it is something that they
would consider doing. But the reason for their reluctance is
because of the fact that literally you had the situation where,
to throw the cliche out there, Guantanamo is now the Hotel
California: Check in; you can't check out.
And this, by the way--keep in mind, I would hope that
during the course of this process, if we are effectively doing
our job of erring on the side of caution, I would hope that at
some point we will pick somebody up who it turns out is not, in
fact, a threat, that we were wrong. This happens. I would hope
it would happen or you are not being thorough enough.
But in the current situation, if you do that, you pick
someone up and you send them to Guantanamo, even if you find
out, you know what, it is the wrong guy, got the wrong guy, not
the guy we thought it was, there is nothing that we can do but
keep him there, under the current law. So shouldn't we, at a
minimum, if we are going to keep options on the table--military
commission, whatever--stop that severe restriction on what can
happen?
And I will throw one other point out before I quit. It has
also been interpreted possibly that even if you go there, you
know, you do a military commission trial, let's say they
sentence him to 10 years. You know, the argument is that even
after the 10 years, when the sentence is up on Guantanamo, you
are still restricted in being able to transfer that person out.
So you have to go to indefinite detention anyway, even after
they served their sentence, because the law that we have passed
has said, you can't transfer this person.
Isn't that a problem, and shouldn't we sort of look at some
way to put some flexibility in there?
Mr. Mukasey. Well, certainly, if that is the effect of the
law, then there ought to be flexibility. I mean, you are not
going to get me to say that I am in favor of that kind of
rigidity. I think tying our hands is the last thing we want to
do in this struggle.
But we have to understand that the law restricting their
transfer to the United States was passed in response to a plan
to bring Khalid Sheikh Mohammed and a whole bunch of other
people to a courtroom in lower Manhattan and the hubbub and
turmoil that that, and I think deservedly, created.
But I agree with you that when you legislate in response to
events like that, to action-driving events, that it doesn't
always create the most rational policy in the world and that
flexibility is very much called for.
And as far as the issue of indefinite detention, we faced
that with the trial of Osama bin Laden's chauffeur, who, in
essence, got time served. And there were people who favored
continuing to detain him after his sentence was served because
he continued to be a threat. But it was felt that we couldn't
do that, and he was nonetheless released.
So, again, we need a coherent policy, we need a flexible
policy. And when you have extreme actions that then become the
subject of legislation, that creates the worst possible
atmosphere in which to make these decisions.
Mr. Smith. And I agree with that. And, certainly, I think,
you know, the decision on Khalid Sheikh Mohammed and the way
the Administration did not come out quickly and clearly and put
a policy--I mean, we had them going through a military
commission process that was stopped. That certainly did not
help this process whatsoever.
I want to ask one question on the civilian Article III
court side. And we have cited this statistic repeatedly, the
number of terrorists we have tried, you know, and going back to
1993 bombing, Ramzi Yousef, you know, captured oversees,
brought back here, tried, put in jail. That seemed to work. He
has been in prison for quite a while here in the U.S., went
through the court system.
I mean, I would submit that Al Qaeda and affiliated groups
are targeting us anywhere and everywhere they possibly can,
whether we are holding people here or not.
Why isn't that an example of why you need to have the
option on the table for civilian trials for people like that?
Mr. Mukasey. Two things.
First of all, I was in the courthouse where that case was
tried and where other cases were tried. That case has to be
tried by jurors who have to be kept anonymous. I had an
anonymous jury in the terrorism case that I tried with the
``Blind Sheik.'' We took great pains to keep those people's
identity from becoming known. The day they delivered their
verdict, two of them found reporters sitting at their doorsteps
and were absolutely terrified. And there is no reason to
believe that that kind of confidentiality can be maintained.
These people don't come--the jurors, that is--don't come
from Mars. They all have friends, they all have working
associates, they all have people who know that they were called
for jury duty, and they could, themselves, come to the
courtroom.
Mr. Smith. We do do that in mob trials. I mean, that is a
huge risk, granted, but it is something that we have done. And,
I mean, there are many, many other types of people where you
are in jeopardy, and we have set up a system to protect them.
Mr. Mukasey. You can't guarantee it. If the interest level
is high enough, that is going to be breached. It was breached
in my case, and I will tell you that the steps taken were far
in excess of what is taken in mob cases. They were taken by
marshals in the morning and in the afternoon, picked up at
pick-up points and dropped off at drop-off points, to make sure
that people didn't discover who they were. But everybody has
one good friend, and they all have relatives and working
associates and so on, some of whom knew they were on that jury.
So that is one issue.
The second issue is, it is a colossal expense. We had to
bring marshals in from districts all over the United States to
protect the courthouse because the U.S. Marshal Service in the
Southern District of New York and the Eastern District of New
York weren't sufficient to provide that kind of protection. It
was enormously costly, it was enormously disruptive.
The cost of protecting two judges--I was one of them. I had
a security detail for 11 years.
Mr. Smith. And I think that----
Mr. Mukasey. And that is not--the point is not that it was
difficult. Of course it was difficult.
Mr. Smith. It is expensive.
Mr. Mukasey. It was very expensive.
Mr. Smith. And I think, you know, one of the things we can
agree on, as I said, about the Khalid Sheikh Mohammed case, at
a certain level of high profile, you know, you do create that
problem. But we capture terrorists on all kinds of levels, down
to a guy like Warsame. They are not all going to be on the
Ramzi Yousef/Khalid Sheikh Mohammed level. So, surely, there
are some examples where this can work.
Mr. Mukasey. Of course there are.
Mr. Smith. And that is all we are saying----
Mr. Mukasey. Of course there are.
Mr. Smith [continuing]. Is to keep all those options on the
table.
Mr. Mukasey. I mean, we had a trial of the millennium
bomber up in Washington, the fellow who was trying to, you
know, bring explosives across the border, successfully tried in
a district court.
All I am saying is that we need to do this in military
commissions, as well. And to compare numbers I think is very
misleading. In essence, as was pointed out before, the military
commission system has been bypassed. I mean, this is akin to
telling somebody, you know, ``I just poured glue in your watch,
and it doesn't work, so you might as well throw it away.'' We
need to let the system work.
And there is a state-of-the-art courtroom down there. I
have visited it.
Mr. Smith. As have I.
Mr. Mukasey. And it is well able to handle these trials, if
only we let them go forward.
Mr. Smith. And let me just say to be perfectly clear, I
mean, my position and I believe the Administration's position
is, all three of these options need be on the table. The
Administration and no Democrat that I am aware of on this
committee is arguing that we should not have military
commissions. We should. Or even, for that matter, indefinite
detention. We have to have indefinite detention.
The concern is, the restrictions that have been placed
legislatively have taken the Article III courts off the table
and tied the Administration in knots, and I think we need to
resolve that. And one of the key issues that we have to resolve
as we are trying to figure out how to get through this is, it
can't be the case that if you go to Guantanamo it is absolutely
impossible to leave. We have to figure out some way to solve
that.
Thank you, Mr. Chairman. I yield back.
The Chairman. [Presiding.] Thank you.
Mr. West.
Mr. West. Thank you, Mr. Chairman and Mr. Ranking Member.
Thank you for the panel for being here.
And lots of academic discussion here, and what I want to do
is maybe try to bring it to the commonsense level of a combat
soldier.
You know, when you deploy me outside the United States of
America and you give me ammunition and you give me imminent
danger pay, that means I am going into a combat zone. And in a
combat zone, you have two types of individuals. The individual
that is in a uniform, shooting at you and planning against you,
that is an enemy combatant. The individual that is not wearing
a uniform, that is not a member of any type of state, is an
illegal enemy combatant. I think that the problem here we have
to come to grips on, if we are in a war, to start to understand
that there are illegal enemy combatants.
Now, the problem I see with this is, you know, back during
World War II we captured Nazi saboteurs off the coast of, I
believe, New York and New Jersey, military tribunal, and they
were summarily executed. And I am not saying we go to that
length, but we already have that system that was in place.
So when I look at what just recently happened with the
gentleman who was accused of planning the African embassy
bombings and, all of the sudden, because of a technicality in
civilian courts, he is not convicted for the murders of those
individuals, my question to you is, if we continue on in this
Warsame case or if we look at the Somali pirates that we now
have in Norfolk, Virginia, who killed the four Americans on
their U.S.-flag yacht, or, as well, with the underwear bomber,
if we do not start seeing them as illegal enemy combatants, if
we start to see them as common criminals and offering them
constitutional rights and bringing them into civilian courts,
what would be the ramifications long-term? And has this Africa
embassy bombing already set a precedent by which things can be
different as we go forth in this Warsame case?
Mr. Chesney. These are really great questions, sir.
Let me first address the point about----
Mr. West. Well, thank you. I stayed up last night to write
them.
Mr. Chesney. I stayed up last night thinking about what I
might say in response.
You mentioned the Ghailani prosecution. This is the East
African bombing defendant who was transferred out of Guantanamo
into the Southern District of New York, where the judge I used
to clerk for, Lewis Kaplan, your former colleague, presided.
And as everyone, I think, knows and recalls, there was
evidence that was suppressed. And the key evidence that was
suppressed was the testimony of a witness who was discovered--
his identity was discovered from the interrogation of Ghailani
himself. The Government didn't dispute that the interrogation
that produced his name was coercive. And it raised one of
these, what we call, you know, the fruit-of-the-poisonous-tree
situations: Should the testimony of the other guy be suppressed
because you learned about him in the wrong way?
It is often suggested that this particular problem, the
exclusion of this guy's testimony, wouldn't have happened if
only we had tried the same case in a military commission. But I
don't think we can make that assumption. In fact, I think that
it is more likely than not--of course, you never know. When you
change decisionmakers, you can get individual differences. But
the applicable rules may well have been quite the same.
One of the things about the current iteration of the
military commissions, with the Military Commissions Act of
2009's voluntariness requirements, is that the rules about
voluntary testimony and what is going to be admissible, in
terms of interrogation statements, have become very close to
being identical to what goes on in Federal criminal courts,
civilian criminal courts. It is often assumed that is not the
case, but I actually think they are quite similar.
There is an exception in the Military Commissions Act for
statements that might not have been voluntary but that were
obtained at the point of capture by a unit, such as one that
you would have been a part of, that captures someone and
immediately conducts field interrogation to get tactical and
operational intelligence. That can come in, potentially, under
the Military Commissions Act, even if not voluntary.
But once you are away from the moment of capture, once you
have gone back into the detention system, and certainly once
you have gone to Guantanamo and you are talking about
interrogation, it all has to be voluntary under the statute,
even if you are in a military commission.
Mr. Engel. And maybe if I may just add one additional
point, we have been talking about this a lot as a practical
question, about what procedures apply in the commissions, what
procedures apply in the Article III courts. I do think the
procedures in the commissions are more flexible. I think that
the error, or the application of Article III standards that
happened in the Ghailani case would be less likely to happen in
the commission process. But I am not sure that that is the
point.
I think the point is what you spoke about when you talked
about sending people into battle and who we are fighting and
picking up there. These are not common criminals. These are
military enemies. We are detaining them by our military. And
consistent with really every one of our past wartime
experiences, we are both entitled and it is appropriate to
treat them through a military commission process. And that
process may be more fair and more robust than we have ever seen
before, but it is still a military process. And we try them
before the commissions because they are the enemies of the
country and they are not common criminals, not simply because
we think in a particular case there are a couple of procedures
that would make the prosecution more efficient.
The Chairman. Thank you.
Mr. West. Thank you. I yield back.
The Chairman. Ms. Hanabusa.
Ms. Hanabusa. Thank you, Mr. Chair.
Mr. Engel, there is a statement in your testimony that I
think kind of gets to the essence of all of this. You said,
``The traditional laws of war are premised upon a conventional
international armed conflict or, in some cases, civil wars. The
established legal framework provides clear answers to who may
be detained, how they must be treated, and where they should be
prosecuted. None of these questions is self-evident when it
comes to the war on terror.''
So can you tell me why it is so clear in the other
situation and why it is so muddy in the situation of the war on
terror?
Mr. Engel. Sure. Well, I mean, largely, when you are
talking about the conventional laws of war, you are talking
about the Geneva Conventions, you know, by and large, and the
common law that has been worked out around that. And the Geneva
Conventions really do provide specific answers as to how we
treat prisoners of war, you know, those legitimate combatants
who meet these standards. And it talks about where they can be
kept. It talks about where they may be prosecuted, if they are
to be prosecuted for war crimes and the like.
And none of these questions really exist or apply when we
are talking about individuals who are not prisoners of war and
individuals who are not covered by international armed
conflict. We have seen some clarity, particularly with the
Supreme Court's Hamdan decision and the way in which it
interpreted Common Article III, that has provided some baseline
treatment standards and the like. But many of these other
issues are issues that have been worked out by the executive
branch with Congress, with the courts. And the answers, even
now, almost 10 years later, you know, are not perfectly clear.
Ms. Hanabusa. So if this war on terror, or however variant
that we may continue to call it--we are going to continue in
this murky area?
Mr. Engel. Well, look, I think we have more clarity now
about these standards, a lot more clarity now, than we had, you
know, on 9/11. I think the United States has taken the lead, I
think Congress has taken the lead in elucidating, you know, the
governing law.
Because when we talk about international law, when we talk
about the laws of war, apart from things like the Geneva
Conventions, these answers don't exist in the sky. The written
bodies of--there is no criminal code for the law of war as
such, but it is worked out from time to time. And I think we do
have some answers, but, as we have seen from this discussion
and we have seen from the reaction to section 1034, there are
still questions that are being worked out here.
Ms. Hanabusa. But it is a unilateral act versus something
that you would see that nations would get together and sort of
agree to some kind of basic premise. And that is what I see as
the problem.
I would like to speak Mr.--is it ``Mukasey''? Is that
correct?
Mr. Mukasey. Yes, it is. Thank you.
Ms. Hanabusa. Okay. And this is regarding the--I know I am
going to not pronounce it correctly--is it the Boumediene----
Mr. Mukasey. Boumediene.
Ms. Hanabusa [continuing]. Boumediene decision. And I think
you were Attorney General when that came out in 2008.
One of the things that I found in the decision that struck
me and wanted to discuss with you is the fact that, toward the
end, the Supreme Court says that because conflicts have been
limited in duration, we have had the ability to have the outer
boundaries of war powers undefined, basically the Presidential
right. And I think the discussion was of separation of the
powers.
What I am curious about in reading part of the testimony
that we have had is, given that situation and given the thing
that the Boumediene decision seemed to have also looked at the
geographic area, of what is the status of Guantanamo, for
example, and they talked about the insular cases--I am from
Hawaii, so of course the insular cases development is very
critical to me.
So what I would like to know is, at what point are we going
to see this clarity? Because at some point we, as Congress,
cannot legislate to the point where the Constitution and the
Supreme Court comes back and says, ``Well, you can kind of do
it for now, but at some point, we are going to address this
issue.'' And I would like to know how you thought about that.
Mr. Mukasey. Well, I think that you have to legislate in
the here and now, and you have to legislate with what we have.
So far as past conflicts being of limited duration, I
should point out that that is only in retrospect. The Germans
didn't march into Poland in 1939 scattering little pieces of
paper saying, ``Don't worry, this is all going to be over by
1945 and the Fuhrer is going to blow his brains out.'' That is
something that we achieved, and it was limited in duration only
in retrospect.
This conflict, I am hoping, will have an end. How are we
going to know? We will know. And it is not something for us to
worry about while it is ongoing. What we have to worry about
while it is ongoing is how we behave and how we treat our
adversaries. And the fact that this committee is holding
hearings like this and passing the kind of law that it has
passed on to the House and that passed the House is wonderful
testimony that we are a nation that does that and that worries
about those things.
But I don't think we can sit here and worry about the
duration of the conflict and paralyze ourselves from acting. We
act with the facts as we know them. If the facts change, you
can always change a statute. But inaction is going to get us in
a place that we don't want to be.
Ms. Hanabusa. Thank you.
Thank you, Mr. Chair. My time has expired.
The Chairman. Thank you.
Mr. Runyan.
Mr. Runyan. Thank you, Mr. Chairman.
Judge Mukasey, in the chairman's opening statement, he
referenced the Administration's overwhelming preference for
prosecuting terrorists in Federal court. What are the downsides
to having the two-track system whereas cases that are seen
feasible are tried in a Federal court and the weaker ones are
tried in the commission?
Mr. Mukasey. I think that sends the wrong message for so
many reasons it is hard to know where to begin.
First, it suggests that military commissions are some sort
of lesser form of justice. They are not. They are, in point of
fact, a robust, able system.
Secondly, we shouldn't be making principled decisions based
on the feasibility of a case or the infeasibility of a case. We
should be making those decisions based on an intelligence
assessment of where they belong, a principled assessment of
where they belong.
And, finally, even if you try to make an assessment in
advance of what the feasibility of a case is, I think the
Ghailani case is a perfect example of the fact that you don't
always guess right.
So, for all of those reasons, I think we have to do this on
some basis other than projected feasibility.
Mr. Runyan. Thank you.
And this is really for all of you, if you want to take a
quick stab at it. You know, this past month, President Obama
issued an Executive order establishing a process to
periodically review continued detention of each detainee at
GTMO. And are any of you concerned about such a process being
an adversarial system on top of all the habeas litigation?
Mr. Dell'Orto. Congressman Runyan, let me take a stab at
that.
First, let me also add one point to what Judge Mukasey
indicated with respect to military commissions. I think one
thing that we have to failed to account for with respect to a
distinction between military commissions and the civilian
courts is, ultimately--and I think this goes to Congressman
West's point--ultimately, the people who are in the best
position to judge the guilt or innocence of individuals who are
accused of committing war crimes are the soldiers. They have
been on the battlefield; they understand what all of this is
about. And I think there lies a very significant aspect of
military commissions that you don't necessarily have in a
civilian court.
Going to your question regarding the review of detention at
Guantanamo, having lived through the Combatant Status Review
Tribunal process, Administrative Review Board process, we are
acknowledging somehow that things are different here than they
have traditionally been on the battlefield. And we did so with
both the CSRTs [Combatant Status Review Tribunal] and the ARBs
[Administrative Review Board]. We provided what I believed was
a system that had a certain process as part of it that worked.
To now take this and turn it into an adversarial
proceeding, where you have counsel for a detainee and no judge
there to adjudicate what is being done in that proceeding, I
think invites a very, very difficult situation for those
commanders who are charged with responsibilities for detention.
You are incorporating into a noncriminal court-type situation
and administrative determination a whole set of legal aspects
that I think are wholly uncalled for in that environment.
Mr. Runyan. Anyone else?
Mr. Chesney. I would like to follow up on that a little
bit. I first would emphasize how important periodic review of
some kind, whether it is by Executive order or by the statutory
mechanism in the Defense Authorization Act, how important it
is, precisely because of the open-ended timeline concern that
Representative Hanabusa raised a moment ago. This is how you
respond to the indefiniteness of war against something like Al
Qaeda.
I have some sympathy with Mr. Dell'Orto's point about the
risk of turning this into sort of a second round of habeas, as
well.
I do want to respond and disagree, to some extent, with the
point he made, however, about the relative expertise of
military officers versus civilian jurors as fact-finders. And
it is a limited disagreement.
I am sure that is actually quite correct as to, for
example, the Omar Khadr situation, where you have a firefight
and there is an alleged war crime involved with the firefight
involving soldiers, and it is the sort of thing soldiers
certainly know better than civilian jurors. But one of the
things that is funny about the current circumstance is, a lot
of times what we are going to charge in commissions as material
support or the sort of things, whatever it was that this
Warsame fellow was up to, if it was tried in a commission,
these will be things that don't look like what soldiers train
and do in combat situations, that are more like what the
intelligence community deals with. And we shouldn't assume that
military officers have special expertise.
That said, I will note that military officers are quite
possibly going to be less likely to be overimpressed by
allegations that someone is linked to Al Qaeda and so on and so
forth. And I think you see that in the Hamdan military
commission case, where they acquitted on some counts, convicted
on a lesser count, and then gave a time-served sentence.
Mr. Runyan. Thank you.
Chairman, I yield back.
The Chairman. Thank you.
Mr. Langevin.
Mr. Langevin. Thank you, Mr. Chairman.
I want to thank the panel for this discussion today. Your
presence is obviously very enlightening. And this is clearly an
extremely contentious issue that I think that we need to
address as a nation if we have any hope of moving forward, with
our history involved in Guantanamo Bay and ultimately, of
course, the AUMF that was issued after 9/11.
I would like to ask the panel specifically their thoughts
about the potential effects of closing off completely the
ability to try any terrorist in Article III courts. And,
second, would it be possible to have Article III courts at
Guantanamo?
Mr. Mukasey. Well, the short answer to your second question
is ``no.''
As far as closing off Article III courts, I don't think any
of us, even the most skeptical--and I probably fit into that
category; maybe Mr. Engel is slightly more skeptical of Article
III courts--I don't think any of us says that you close off
Article III courts.
I think what we are talking about here really is where you
set the default. And there are those of us who believe that the
default should be set at military commissions for reasons that
we have explained and other folks who think it should be set at
Article III courts.
But I don't think anybody favors closing off Article III
courts. They are very a important tool, and, as a former card-
carrying Federal judge, I have great confidence in them.
Mr. Engel. And, actually, if I may add, sometimes there is
confusion when we talk about terrorism prosecutions and Article
III courts and military commissions, that sometimes we are
mixing apples and oranges.
I mean, there is no question that the Article III courts
have prosecuted--you know, have overseen the prosecution of a
wide variety of terrorism cases since 9/11 and before, that
were folks who were picked up by the FBI [Federal Bureau of
Investigation], using traditional law enforcement mechanisms in
this country. And I don't think there is any disagreement, by
and large, that the vast majority, if not nearly all, of those
cases are appropriate and should go forward in Article III
courts, at least as the default rule.
By contrast, when we talk about folks who were picked up in
wartime circumstances, either by military services or by our
intelligence services, often picked up by foreign governments
who then turn them over to the United States in connection with
this ongoing armed conflict, I think it is there--and these are
basically the folks at GTMO and folks who are to be picked up
in the future--where the military commission system would seem
to be most appropriate to those circumstances and, you know,
something as the default rule under those circumstances.
Mr. Chesney. I think it is very interesting that we are
actually seeing a lot of consensus on--I think all of us came
into this largely agreeing about the need to have all three of
these tools, the legitimacy of all these tools, and a fair
amount of consensus emerging about the need for some degree of
flexibility. And I would associate myself with Judge Mukasey's
remarks about the question really being, where is the default
set?
I do want to underline that, in the circumstance, as Mr.
Engel described it, of the overseas capture, which is really
what this is about, much more so than within the United States,
there is a fact pattern that can and has arisen from time to
time that, if nothing else, shows you that you do have to have
some flexibility to be able to prosecute in a civilian court.
And that is when it is a foreign government that has custody of
an individual and they won't give him to us unless we are going
to pursue a civilian criminal prosecution. That is, they won't
transfer him into our custody were we to pursue a military
commission alternative.
There was a fellow who was, I believe, in the Netherlands.
His name has escaped me, but I believe it was Delaema, if I am
recalling correctly, and he was in Dutch custody. He was
involved in the insurgency in Iraq. They would not possibly
have given him to us if we were going to put him before a
military commission. And I believe there was actually a
diplomatic agreement that we would not actually put him in a
military commission or military detention. If we wanted him, it
was Article III or nothing.
Examples like that hopefully will be rare, but when they
arise, we need to make sure that the President has the ability
to say, yeah, we will take him, even though it is not a
preferred option.
Mr. Langevin. Thank you.
Mr. Chesney, let me ask a different topic, in response to a
question or a comment from Judge Mukasey, what are your
thoughts about shipboard detention?
Mr. Chesney. So, shipboard detention, as soon as you raise
it, I think all of us think of the British hulks lying in the
East River in the American Revolution, the horrors that the
American soldiers captured there went through. And others may
think of the Japanese so-called ``hell ships'' of World War II.
There is a terrible history associated with them because,
generally speaking, they are deeply unhealthy places to hold
people, historically speaking, and often they are dangerous as
well. Many an American POW [prisoner of war] was accidentally
killed by friendly fire when we fired on ships in World War II
that turned out to have prisoners aboard them. So there is the
justifiable negative reputation there.
It is carried forward in the Third Geneva Convention, which
says prisoners of war have to be held on land, full stop. That
provision is not applicable. That is a provision applicable
only to international armed conflicts, which is not what we are
talking about here. It is not clear that in noninternational
armed conflict the same strict rule applies, but we can look to
the Army's longstanding regulations about shipboard detention.
Army Regulation 190-8 has long provided that you have to
strictly limit it, but it can be done for temporary operational
exigency reasons, particularly if you have captured someone at
sea.
I agree with Judge Mukasey that, at the end of the day, it
was lawful to hold Warsame for the 2-month period that we did
hold him. You couldn't show that that violated international
law. But there is no question, also, that we do not want to be
in the business of long-term Guantanamo at sea.
Mr. Langevin. Very good.
Thank you, Mr. Chairman. I yield back.
The Chairman. Thank you.
Mr. Reyes.
Mr. Reyes. Thank you, Mr. Chairman.
And thank you, gentlemen, for being here. I did read your
testimony, but I apologize for not being here earlier due to
another conflict.
But I was interested, based on what I read and what I have
heard, what you think are the long-term implications of what
has been the whole Guantanamo experience or the process, both
to us and to our allies. And then, in there, if you could
consider the kinds of asymmetric threats that we face today,
what can we expect long-term from this issue.
Mr. Dell'Orto. Well, let me begin, Congressman Reyes.
Going back to the earliest days of the determination to
house detainees at Guantanamo, there was a fairly extensive
look at potential options for where to house folks. And as
Secretary Rumsfeld I think once described it, it was the least
worst of a number of bad options.
There weren't very many options open to us, particularly if
we were not going to keep them in Afghanistan because of the
nature of the footprint we wanted to limit in the theater
there, the practical reasons for trying to maintain a very
secure facility, and, you know, concerns about having folks in
the United States who, you know, who unlike traditional
soldiers who fight in accordance with the laws of war, would do
anything were they to break out and be a true threat to the
populace.
Guantanamo became the one place where we believed we had
the ability to, first, ensure that they were secure there, and,
two, put us in a position to take maximum opportunity to
develop as much intelligence as we could.
Having said that, I think the reasons--and as I said in my
earlier testimony--I think the reasons for opening Guantanamo
then hold true today: where we have a dynamic situation, a
changeable foe, an uncertain operational picture in terms of
geography. Guantanamo, to my way of thinking, still presents us
with a very well-developed and mature now facility, with all of
the construction that has taken place there, procedures that
have been established for detaining the sorts of folks we are
picking up on the battlefield, and continuing to interrogate
them as the need warrants.
Mr. Mukasey. I would add that Guantanamo, in my view, is a
state-of-the-art facility. I visited when I was a district
judge. Forget maximum security--medium security facilities in
this country, Federal prisons; Guantanamo compares favorably
with the conditions in those prisons insofar as how it treats
people.
If we were to close it, we would be doing away not only
with all of that, it is a place that is remote, secure, and
humane. We would be doing away with all of that. We would also
be doing away with all of the experience, the collective
experience that we have in holding people there, understanding
how to deal with them and how to control them. That would be an
enormous sacrifice, forget the financial sacrifice of having
built that kind of facility, including an expensive courtroom
facility in which we can try military commission cases.
Long-term, what I hope, in response to your question, is
that we here and the world at large comes to its senses about
what Guantanamo is and what it isn't, and that if we have to
keep it open, that we can keep it open and do it in a
straightforward, unashamed way. Because there is nothing to be
ashamed of down there.
Mr. Chesney. Greetings from Texas, Congressman.
You asked about asymmetric threats and the future course of
things. In looking very far ahead, I want to sound a
pessimistic note and suggest that we may look back on this
time, amazingly enough, as the easy phase in terms of the legal
and policy debates. We may, 10 years down the road, be dealing
with a situation in which we long for the days in which we
could at least say that there was something called ``Al Qaeda''
that had some sort of organizational trappings and that it
wasn't so completely diffused that you can't even come to grips
with exactly who the enemy is.
One of the leading theoreticians of Al Qaeda is a man named
al-Suri. And al-Suri's core idea is a familiar one for those
who study nonstate violence. It is the idea of leaderless
resistance. He has been urging for years and years that Al
Qaeda's leadership do everything it can to transform the
movement from organization to ideology and inspiration, where
everyone might decide to self-radicalize and engage in violence
against us. And if and when we really get to that point in an
even greater degree than we have today, we are going to have
one heck of a time trying to figure out how to bring all these
tools to bear on it.
Mr. Engel. I will just say, on a more positive note, we
have understandably been focusing on issues in which there is
disagreement, but when I look at the long term and I think
about, you know, where we have come over the last 10 years, I
am actually heartened by the degree to which there is some
bipartisan agreement on a number of issues, you know, with
respect to this armed conflict.
You know, we have seen--there is common agreement that we
are at war with this enemy, Al Qaeda and its affiliates. There
is common agreement that we may detain these folks under the
laws of war and for the long term. And even with respect to
things like military commissions, which seemed to divide the
country, you know, just a few years ago, we have seen President
Obama support military commissions, at least in principle, and
actually push through, you know, or support an act that
Congress passed to update and amend the Military Commissions
Act of 2009.
And so, through now two successive administrations, there
is actually a substantial degree of consensus on a lot of big
issues with respect to the legal framework of the war on
terror. And, unsurprisingly, there are still issues of policy
and law that divide folks, but, you know, I actually see things
moving in a positive direction on a lot of fronts.
The Chairman. Thank you.
Mr. Garamendi.
Mr. Garamendi. Thank you, Mr. Chairman.
I, too, apologize for not being here earlier. I was in the
Resources Committee defending the work you did on the
wilderness study in Mono County. Good piece of work.
But the issue at hand today is exceedingly important. As
you recall, we had a rather controversial moment with the
National Defense Authorization Act. I want to compliment you on
having this hearing, bringing us together to deal with some of
the extraordinarily important and very complex issues
surrounding it.
The one question I have goes to Guantanamo, and that is,
could it be a Federal court as well as a military court at
Guantanamo?
Mr. Mukasey. It can't. The Constitution prescribes that
cases be tried where the crimes are committed. And you can't--
forgetting the fact that there is no Federal district, Congress
could always define the outlines of a Federal district. And
there is no authorization for holding court there; you can
solve that, too. And forgetting where you would get a jury from
and where you would hold them and all of that. I believe the
Constitution absolutely bars trying somebody someplace other
than where the crime was committed.
The Chairman. Thank you.
Ms. Sanchez, you had another question?
Ms. Sanchez. I just wanted to put something in for the
record, because I know that Mr. Dell'Orto had--and I agree with
a lot of what you are saying with respect to how important--or
how well our military men and women can judge the combatants.
And, to a large extent, I do agree with that.
But you mentioned, in saying that, Mr. West's comments
about how it had served us in the past. And the one case that
he brought up, in particular, were the six German saboteurs.
And I just wanted to add for the record, that was probably not
a very good case to bring up, considering, you know, putting
them before a firing squad when, in fact, they had turned
themselves in. Most of them didn't even know what they were
coming over to do, et cetera. It is just a very bad case in
point, so I wanted to put that into the record.
But I do agree with your comments about how, most of the
time, our military can be some of the best judges with respect
to that.
Thank you, Mr. Chairman.
The Chairman. Thank you.
I have a couple of questions.
What are some of the possible ramifications for bringing
foreign terrorist detainees to the United States in terms of
constitutional rights and immigration-related issues that could
be triggered?
Mr. Mukasey. Well, I think we are all aware that, once
somebody comes to this country, there attaches to them a whole
panoply of rights that they don't have so long as they are
outside it. And that is true even post-Boumediene.
So far as immigration issues, once somebody is in this
country, there are then limits on how long we can hold them in
an effort to deport them. If it were necessary to deport any of
the people that we brought here for trial, whether because of
the expiration of their sentence or because of their acquittal,
the current state of the law is that we have essentially 6
months to find a place for them to be sent, and then we may
very well have to let them go.
Now, whether that would hold in a difficult case or not, I
don't know. But I don't want to have to bet the farm on the
outcome of that kind of exercise. I think once they get here,
they are in the jurisdiction of any Federal court where they
are held. And there is a whole array of lawyers who have said
that they are perfectly well-prepared to file as many cases as
they can, whether they are frivolous or well-founded, in an
attempt to challenge conditions of confinement, the fact of
confinement, the whole range of issues that can be challenged
in a Federal court. And we are going to find our Federal courts
in the business of doing virtually nothing but defending those
cases, if those folks are brought here.
Mr. Chesney. On the question of constitutional rights, the
interesting question is, What, ultimately, will turn out to be
the case for the detainees who stay at Guantanamo when they are
being prosecuted in commissions when they invoke the Sixth
Amendment Confrontation Clause and Fifth Amendment due process,
particularly relating to coercion and voluntariness?
It remains to be seen and is an open question whether or
not the constitutional, trial-related rights that are at issue
for sure if you bring them into the United States, whether they
might be at issue, as well, and perhaps even to the same effect
in a commission proceeding. There is years of litigation
awaiting us before we know for sure what the D.C. Circuit or
the Supreme Court ultimately will have to say on that.
We can't assume, though, that the current state of play is
or will be that they get a certain set of rights in the United
States but they just won't get that at Guantanamo. They may
well get the same constitutional rights in the end. We don't
know, we don't have a crystal ball, but you can't rule it out.
On the immigration issue, the key issue, it is, I think,
the most significant problem and issue that needs to be dealt
with when one considers bringing someone from outside the
United States into the U.S. The Supreme Court in 2001 in
Zadvydas had said, in a non-national-security case, that if you
had some person who is removable, but for whatever reason, he
is a stateless person or he is at risk of torture, whatever it
is, you just practically can't remove them, then, as Judge
Mukasey said, after 6 months, or roughly speaking, you
potentially constitutionally got to let him go into the United
States.
However, in the same decision, Justice Breyer, for the
majority, wrote specifically that the majority was not talking
about a terrorism--and they used that word--terrorism or
national security scenario. They didn't say that the answer
would be opposite in that scenario, but they went out of their
way to say that they weren't setting that rule.
And in a later case called Clark v. Martinez, an opinion by
Justice Scalia again underlined that that was not necessarily
the rule for terrorism and security cases. And Justice Scalia,
for the majority, specifically referred to the Alien Terrorist
Removal Court, the special immigration proceeding that we
haven't yet had occasion to use but we well might in one of
these cases, suggesting fairly strongly that the answer might
be different in that context.
The Chairman. Anybody else on that one?
Mr. Engel. Well, I think I would just add, I mean, when we
are talking about bringing people into the United States, and
when particularly we are talking about people from difficult or
failed states like when we are talking about Yemen or Somalia
or the like, we need to assume that they are not leaving here
at the end of the day, and either they will be kept in
detention, if we believe we can detain them, or, ultimately,
someday they will be released if our legal authority for
detention lapses.
And, you know, those are serious issues that need to be
considered in addition to the burdens of nonstop litigation
that Judge Mukasey alluded to, you know, that will come. So it
is a weighty decision and one that shouldn't be made solely
with a focus on a particular criminal prosecution, you know,
which could have a short term with uncertain results.
The Chairman. Okay.
There has been some discussion about whether Ahmed Warsame
could qualify for prosecution before a military commission. Do
you believe that the Military Commissions Act would need to be
amended in order to establish jurisdiction over individuals who
are part of an associated force, such as Al Qaeda in the
Arabian Peninsula?
Mr. Engel. I don't personally believe so. I think it is
certainly a question that would be litigated, and it is not a
trivial question. But the Military Commissions Act, as it is
currently written, permits prosecution of individuals who have
engaged in hostilities against the United States or who has
purposefully and materially supported hostilities against the
United States or its coalition partners.
Again, I mean, I think, to the extent that this committee
were to look at this issue and were seeking to expand, you
know, to include associated forces alike, I think that could be
helpful. But I do think the Government could argue and likely
win the case like Al Shabab, you know, or Warsame under the
Military Commissions Act.
Mr. Chesney. I think with Al Qaeda in the Arabian
Peninsula, I think the Government would win this. It may have
to come forward with evidence it would prefer not to use in
court to do it, but it could do it.
I think Al Shabab, from an outside perspective, not knowing
the classified information that is relevant to the question, I
nonetheless have the perception that it is substantially more
difficult question, complicated by the fact that in Al Shabab
you have some actual Al Qaeda figures who are effectively dual-
hatted. Some Al Shabab members, they are clearly going to come
within the scope of the commissions act and detention authority
under the AUMF, whereas other, especially more of the
indigenous personnel in Al Shabab, that is not necessarily the
case.
And then, again, of course, it will all change over the
course of a year's time. It is an evolving threat. In the past
year, we have seen Al Shabab's leadership declare formal
allegiance to Al Qaeda. And in a year or 2, we may find that Al
Shabab is relatively uncontroversially described as part and
parcel of Al Qaeda itself, or we may find it remains an
indigenous unit that is entirely separate.
The Chairman. It is one of the reasons why we are
addressing this in our current bill, because things do change.
And then probably it would be open to be addressed in a future
one.
One final question for Judge Mukasey. I would like to ask
if you would hone in on how the detainee habeas cases are also
impacting the evolution of targeting authorities pursuant to
the AUMF. Can Congress' affirmation of the AUMF help prevent
policymaking by the courts in this area? Wouldn't the
affirmation section 1034 provide more solid ground for the
lawyers in the executive branch?
Mr. Mukasey. The answer to that is an emphatic ``yes.'' It
turns out that targeting decisions are being made by reference
to the developing body of habeas cases that determine who is
and who isn't targetable--or that were not meant to determine
that. They determine who can and can't be held, which is a very
different question.
And the judges, who do not have the fact-gathering ability
or, frankly, the competence, let alone are not politically
responsible, are making those decisions in habeas cases. And
that body of law is then being used, in the absence of any
other authority, as a basis for lawyers in the Defense
Department making targeting decisions.
The cases were never meant for that. My hope is that it
would mortify the judges who are deciding those cases to know
that their decisions have those implications. But the fact is
that they do. And once you create a body of law, it is very
difficult to control how it is going to be used by other
people, which is an excellent reason for Congress stepping in
and creating flexibility here and making certain that we don't
have targeting decisions being made on the basis of ad hoc
decisions in habeas cases.
Mr. Reyes. Can I ask one follow-up to that question?
The Chairman. Sure.
Mr. Reyes. Judge, is it possible for someone to make a
case--because I have heard this in some of the people that are
questioning the legality of setting up a place like
Guantanamo--is it possible for somebody to make a case that at
least some of these people being held there are in a state of
legal limbo or legal suspended animation because they can't be
moved one way or the other?
And if it is, what would be the entity that would be able
to make--that they could make that case to? Is it the World
Court? Or where would they be able to take it?
Mr. Mukasey. Guantanamo is controlled by the United States,
and in fact the fact of control was the basis for the Supreme
Court saying that people detained there could have habeas
rights, or something like habeas rights. I don't think they are
in any kind of limbo. They are certainly not in any kind of
limbo so long as we have courts in this country who will rule
on what we do in places that we control. I don't think that is
something that we really need to concern ourselves with.
We certainly don't want to cede jurisdiction over that
decision to a world body that is essentially a political court
that makes decisions on something on the basis of something
other than United States law. That it seems to me is something
that is a decision that can and should be controlled by the
political branches of Government, this branch, the legislative
branch of course, and the executive, and that judges should be
following those decisions, not making them.
The Chairman. Ranking Member Smith.
Mr. Smith. I think you said two things. I want to follow up
a little bit on the question of targeting based on the
detainability of the target. I wasn't sure I heard quite
correctly what you said there, Mr. Mukasey. You are saying that
there are decisions to target people based on the fact that
they are not detainable so we have to take them out. Was that--
--
Mr. Mukasey. No. It is my understanding that in determining
whether somebody can be targeted or not--and Mr. Dell'Orto I
think can probably can speak to this more authoritatively
because he knows about the decisionmaking process within the
Pentagon--but that lawyers in the Pentagon are involved in
those decisions, and so they look for a body of law, and the
body of that law that they look for is the body of law that is
contained in habeas cases. Habeas cases aren't for that purpose
at all; they are for the purpose of determining detainability.
And so you wind up having a body of law created in one setting
being used in a setting which was never intended to be used,
with results that can't possibly be good.
Mr. Smith. Well, certainly it is a very complicated
situation. I know the DOD is going to in terms of who they can
target, whether for detention, killing, or capturing, those
lists move around, there is a whole lot of history there. But I
think I understand your point.
Just a quick question. Mr. Mukasey had answered about
Article III courts at Guantanamo that he did not think that was
a constitutional option. I just wanted to see what the other
three, how they felt about that as a possible option.
Mr. Dell'Orto. I would certainly defer to the judge's view
on that. I have not looked at the question specifically, so I
don't have an answer beyond my agreement with Judge Mukasey.
Mr. Mukasey. Just to be specific about the provision,
Article III, Section 3, says: The trial of all crimes except in
cases of impeachment shall be by jury and such trial shall be
held in the State where the said crime shall have been
committed, but when not committed within any State the trial
shall be at such place or places as the Congress by law may
have directed.
If you have a crime that is not committed in any State, I
suppose you could have a court. But then the question would be
where do you get the jury, where do you hold them? You have to
create--or add Guantanamo onto one of the existing districts.
It is a mare's nest.
Mr. Chesney. Congress created a district of--I am not sure
exactly the title, but in West Berlin, in the American sector.
I think it even tried one case. It may even have been in the
1970s, I believe. Do you know the details, Steve?
There is an obscure historical episode. This sort of thing
can be done. It is difficult. But as Judge Mukasey said, the
scenario in which the offense is entirely extraterritorial, by
definition, doesn't present the ``you have got to try it
somewhere other than Guantanamo'' scenario, you can put it
where Congress wants to put it.
There is the expense and the logistical questions
associated with that. In theory, I suppose you could piggy-back
on the facilities that are at Guantanamo, and you could create
the District Court for Guantanamo there, and you could draw on
the substantial population that lives there as the jurors. I am
not sure this is the right solution, but I think actually it
probably could be done.
Mr. Engel. I think the principal question would be the
difficulties in finding the judge and the jury and the like. I
think probably as a statutory matter, some Congress could
create either a territorial court and may well be able to
create an Article III court. I don't know if the West Berlin
court was in fact an Article III court, or probably a
territorial court or the like.
But it would not be easy, and I don't know whether it would
be advisable. But Congress has broad authority to create
Federal courts, and so if it were to target the issue it may be
theoretically possible. But I have not studied it, I confess.
Mr. Chesney. I would just add really quickly, if it were an
Article III court, we would be talking about the mother of all
confirmation hearings, I suppose.
Mr. Smith. Thank you. I appreciate the detail. I have no
further questions.
The Chairman. Thank you, each of you, for being here today.
I think you have been an outstanding panel of witnesses, and we
really appreciate your expertise and your willingness to help
us out on this issue.
With that, this committee stands adjourned.
[Whereupon, at 12:06 p.m., the committee was adjourned.]
=======================================================================
A P P E N D I X
July 26, 2011
=======================================================================
PREPARED STATEMENTS SUBMITTED FOR THE RECORD
July 26, 2011
=======================================================================
Statement of Hon. Howard P. ``Buck'' McKeon
Chairman, House Committee on Armed Services
Hearing on
Ten Years After the 2001 Authorization for Use of
Military Force: Current Status of Legal Authorities,
Detention, and Prosecution in the War on Terror
July 26, 2011
Good morning. Much has changed over the past 10 years,
since the attacks of 9/11 and the 2001 passage of the
Authorization for Use of Military Force. Changes have been made
to Federal agencies, laws, and the lives of thousands of our
men and women who have taken the fight to the enemy. We've
borne the heavy burden of losing some of those brave men and
women. These Americans, whether military or civilian, have paid
the ultimate price as part of an effort to prevent terrorists
from reaching our shores.
Terrorists still pose a grave threat to the United States.
But they have changed as well. We now face a diversified threat
emanating from multiple locations. While we believe that Al
Qaeda's capacity to launch widespread attacks has been
diminished by the unrelenting work of our military and
intelligence professionals, there are new and different faces
of the same enemy in places like Yemen and Somalia. Our
Government's counterterrorism leaders say that Al Qaeda in the
Arabian Peninsula is now the greatest threat to the United
States. We must acknowledge this reality and move forward.
When I became Chairman, I told our members that the
committee must operate on a wartime footing. This is because as
members of Congress, we are charged by our constituents and
Article I Section 8 of the Constitution to ``provide for the
common defense,'' ``define and punish . . . offenses against
the law of nations,'' ``declare war,'' ``raise and support
armies,'' ``provide and maintain a navy,'' ``make rules for the
government and regulation of the land and naval forces,'' and
to ``make rules concerning captures on land and water.''
It is time to reaffirm Congress' role in identifying the
scope of the current conflict. And just as importantly, it is
time to reaffirm Congress' support for those we have asked to
defend us against the threats we face. These are the reasons
why I believe the House strongly supported inclusion of the
affirmation of the 2001 Authorization for Use of Military Force
in the National Defense Authorization Act for the Fiscal Year
2012.
Unfortunately, the Administration has suggested that
Congress is trying to limit options for handling terrorism
suspects. Yet, it is the Administration's foreclosure of some
of the most fundamental aspects of this war effort that have
forced Congress' hand. For example, we recently heard Vice
Admiral William McRaven confirm in testimony before the Senate
that bringing detainees to Guantanamo is ``off the table.'' A
law of war detention system for future captures--focused on
intelligence collection and keeping terrorists out of the
United States--is essential to our success.
We cannot possibly prefer terrorists to be held aboard Navy
ships. And we cannot possibly be comfortable with a policy
whereby bringing terrorists to Guantanamo is ``off the table,''
but bringing them to the United States is not.
In certain cases, prosecution may also be appropriate for
law of war detainees. When it comes to deciding the forum for
such prosecution, the Administration has shown time and again
that not only is prosecution in Federal court their
overwhelming preference for current detainees, it is the only
option they will seriously consider for future captures.
The Administration has spent countless hours touting the
Federal criminal justice system. I agree that we have an
excellent court system. I simply disagree that military
commissions, like detention at Guantanamo, should be off the
table for future captures. In fact, the strong preference
should be for prosecution by military commission.
The Administration and their supporters also frequently
cite the number of terrorism cases that have been successfully
prosecuted in Federal court. However, this is not a very
helpful point of comparison given that we do not know how many
terrorists have instead been released and never prosecuted
because of a lack of admissible evidence. Further, the
courtrooms at GTMO have sat empty for 2\1/2\ years at the
direction of the Administration. The commissions system cannot
prosecute cases that it does not have.
This problem is further heightened when the Administration
delegitimizes the commissions system with their words and
actions. Attorney General Holder's reluctant announcement to
prosecute the alleged 9/11 co-conspirators in a military
commission, during which he ``blamed'' Congress, comes to mind.
Why would an observer take seriously a forum that the
Administration itself seems to suggest is a lesser system of
justice?
I disagree with this notion. The military commission system
is fair and just. And it should be resourced with the best
personnel our Government has to offer. Instead of undermining
the system, Attorney General Holder and the Department of
Justice should lend their full support and resources to the
Department of Defense. And the military commissions should be
given a real chance to succeed. Perhaps then it will be fair to
compare and contrast it with other systems.
This is not a time for division. The war we are fighting is
against our enemies--Al Qaeda and their associates.
It is time for us to affirm that our enemies, and the legal
authorities we have provided to fight them, have evolved. So
too must our policies, particularly those dealing with law of
war detention and prosecution.
Statement of Hon. Adam Smith
Ranking Member, House Committee on Armed Services
Hearing on
Ten Years After the 2001 Authorization for Use of
Military Force: Current Status of Legal Authorities,
Detention, and Prosecution in the War on Terror
July 26, 2011
I thank the Chairman for holding this hearing.
I continue to believe we must have a clear and coherent
strategy to properly detain and interrogate terrorists who
attack and threaten us. Congress needs to act to provide a
consistent policy that upholds the Constitution and our values
while at the same time ensuring our national security.
This policy needs to do four things: 1) effectively
prosecute the enemy in a way that is consistent with the rule
of law; 2) effectively obtain intelligence, both short-term and
long-term; 3) effectively detain those who are fighting against
us, both short-term and long-term, and 4) resolve what we are
going to do with the remaining detainees at Guantanamo.
In my mind, this means our policy needs to use all
effective tools to protect us against this terrorist threat. As
the President's advisor on these issues, John Brennan, has
stated, ``confronting this complex and constantly evolving
threat does not lend itself to simple, straightforward
solutions. No single tool alone is enough to protect the
American people against this threat.'' I am in favor of
military commissions, when appropriate. I am in favor of law of
war detention, when appropriate. I am in favor of interrogating
the enemy, within the rule of law. And I am in favor of using
the one method we know works, prosecuting terrorists in our
criminal justice system.
The legislative proposals to address our detention and
interrogation policies passed by the House limit the
President's options. The recent decision by the Administration
to try Ahmed Warsame in Federal court illustrates the
limitations of the pending legislation. If enacted, Warsame
would not have been able to be transferred to the United States
for trial in Federal court, which appears to be the most
effective way for handling his specific case.
I continue to believe that having a legal and coherent
policy to detain, try and interrogate terrorists who attack us
and their supporters is not just a matter of protecting our
Constitution and upholding our values, it is also a matter of
national security. It is vitally important that we make it
clear to our adversaries that the freedoms we hold dear and our
way of life that they seek to attack is far superior. But it is
also important that we craft an airtight policy to protect
against the court-ordered release of dangerous, violent
extremists.
Today's hearing will provide us with another opportunity to
review the relevant law and policy and to have a candid
discussion about how to best move forward. I look forward to
hearing from members of the committee and from today's
witnesses, all of whom have been involved in detention policy
for many years, about how we can address this significant
problem.
[GRAPHIC(S)] [NOT AVAILABLE IN TIFF FORMAT]
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DOCUMENTS SUBMITTED FOR THE RECORD
July 26, 2011
=======================================================================
[GRAPHIC(S)] [NOT AVAILABLE IN TIFF FORMAT]
=======================================================================
QUESTIONS SUBMITTED BY MEMBERS POST HEARING
July 26, 2011
=======================================================================
QUESTIONS SUBMITTED BY MR. CONAWAY
Mr. Conaway. As we draw down in Afghanistan and Iraq, the case of
Ahmed Abdulkadir Warsame is an indication of how the U.S. Government
will encounter terrorists in the future. In the case of Warsame, the
U.S. military did not apprehend Warsame on the battlefields of
Afghanistan or Iraq but instead in the Gulf of Aden on the coast of
Africa. By all accounts, Warsame provided valuable intelligence
information during his interrogations, but due to his terrorist
connections, it was impossible for the U.S. military to simply let him
go.
After intelligence-collection interrogations are over, what can the
U.S. do with terrorist suspects who were detained outside of Iraq and
Afghanistan?
If the U.S. and Guantanamo Bay are deemed unviable options, where
can (should) these types of terrorist suspects be held as they await
their trial by military commission?
Mr. Mukasey. These two questions should be answered together and
point up the usefulness of enhancing authorities under the AUMF. The
AUMF, passed one week after the September 11 attack, authorized the
President to use force against ``those nations, organizations or
persons'' who ``planned, authorized, committed or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future acts of
international terrorism against the United States'' by such persons.
Although the AUMF did not name either Al Qaeda or the Taliban, and did
not specifically authorize detention, the Administrations of both
President Bush and President Obama have operated on the assumption that
the authority to wage war necessarily includes the power to detain
captured enemy belligerents. Those belligerents have been encountered
not only in Afghanistan but also in Iraq, Pakistan, Yemen and Somalia.
As a practical matter, the return of sovereign control over Iraq to an
Iraqi Government means that the only place where we have facilities to
detain those belligerents other than in the United States or at
Guantanamo Bay would seem to be at Bagram Air Base in Afghanistan, and
that option will not continue indefinitely. If, as the question
assumes, we rule out transfer to the United States or to Guantanamo,
that leaves only the options of transfer to a third country, or
release. The former would take out of our hands control over duration
of confinement or conditions of confinement. Which is to say, it would
put both our fate and the fate of those captured during the conflict in
the hands of third parties, with no assurance that our interests would
be served or our standards maintained. The alternative of freeing those
captured is at least equally unsatisfactory, meaning as it does that
detainees will be free to return to the fight against us. I believe the
AUMF should be amended to provide the executive with specific authority
to detain, but also with specific standards for determining when
detainees must be held outside the United States and when it may be
permissible to charge them in domestic courts.
Mr. Conaway. After intelligence-collection interrogations are over,
what can the U.S. do with terrorist suspects who were detained outside
of Iraq and Afghanistan?
Mr. Dell'Orto. Under the Law of Armed Conflict, if an individual
who is determined to be an enemy combatant is captured, he may be
detained until the end of the conflict. In theory, he may be detained
at the location at which he is captured, although he must be removed
from the danger of ongoing hostilities. If we choose not to detain him
at the location of capture, whether because of the logistical burden
associated with maintaining him in a secure facility there or because
the country in which he is detained objects to our doing so within its
borders, or that country declines to detain him in one of its
facilities under conditions acceptable to the U.S., the U.S. can move
him to another country willing to detain him or move him to Guantanamo
Bay.
Mr. Conaway. If the U.S. and Guantanamo Bay are deemed unviable
options, where can (should) these types of terrorist suspects be held
as they await their trial by military commission?
Mr. Dell'Orto. If neither the U.S. nor Guantanamo is considered a
viable option, the practical alternatives are extremely limited. As
indicated above, the U.S. would have to identify a country that would
be willing to detain the individual for us under conditions acceptable
to the U.S. and that would be willing to transfer the individual back
to the U.S. for purposes of trial before a military commission. In my
experience, very few countries would find themselves in a position to
assist us in such a manner. First, few, if any, countries believe
themselves to be at war with Al Qaeda or other similar terrorist
entities and thus, would not be in a position to rely on the Law of
Armed Conflict as a basis for detaining such an individual. Second,
very few countries have broad enough domestic criminal legal regimes
under which such an individual may be detained as a terrorist suspect.
Lastly, still fewer countries, having agreed to detain such an
individual, would agree to transfer the individual back to the U.S. for
trial before a military commission. On those rare occasions in which a
country captured and detained a terrorist suspect who could be tried in
the U.S., that country would only agree to transfer the individual to
the U.S. on the condition that he would not be tried before a military
commission, but rather only in a U.S. civilian court.
Mr. Conaway. As we draw down in Afghanistan and Iraq, the case of
Ahmed Abdulkadir Warsame is an indication of how the U.S. Government
will encounter terrorists in the future. In the case of Warsame, the
U.S. military did not apprehend Warsame on the battlefields of
Afghanistan or Iraq but instead in the Gulf of Aden off the coast of
Africa. By all accounts, Warsame provided valuable intelligence
information during his interrogations, but due to his terrorist
connections, it was impossible for the U.S. military to simply let him
go.
After intelligence collection interrogations are over, what can the
U.S. do with terrorist suspects who were detained outside of Iraq and
Afghanistan?
Mr. Chesney. One option, not available in all cases, is to detain
terrorism suspects in military custody under color of the law of armed
conflict (``LOAC''), without criminal charge. This option by definition
is available only where LOAC actually applies. There is, unfortunately,
sharp dispute as to where if at all LOAC applies in connection with
captures that occur outside of combat zones such as Afghanistan. One
extreme in that debate holds that LOAC has no application whatsoever
except in the geopolitical boundaries of states in which conventional
combat is occurring. The other extreme holds that the LOAC applies
wherever in the world one might find a person who has some kind of
connection--membership, perhaps even independent support?--to a group
that is in some fashion party to an armed conflict. In between, one
finds positions such as the view that geography is irrelevant for
leaders and other group members whose activities have an impact within
the recognized war zone. For better or worse, few of the GTMO habeas
cases have given courts occasion to weigh in on this issue in a manner
that could settle it going forward. But there has been at least one
such case: the detainees in the Boumediene litigation were originally
captured in Bosnia, well away from any overt hostilities in
Afghanistan, and the courts have thus far approved the military
detention of one of them despite this geographic disconnect. In his
case, the conduct making him eligible for detention had to do with
efforts to recruit fighters for the combat zone.
Even if the military detention option is available for non-combat
zone captures in some cases, however, that does not mean that it is
available for just any terrorism suspect. The more remote the fact
pattern is from Al Qaeda, the less likely it is that this option will
be available. Nor is it an option for the executive branch to simply
assert the authority in any event in dubious cases, at least not for
the long term; it is more likely than not that a person in this fact
pattern will be entitled to habeas review in a Federal court, no matter
where they might be held.
In any event, criminal prosecution of course is a significant
alternative. Military commissions are an option under this heading if
and only if the individual comes within the scope of the personal
jurisdiction provision of the Military Commissions Act of 2009. Under
that statute, a commission has personal jurisdiction only over an
``alien unprivileged enemy belligerent.'' \1\ The MCA defines
``unprivileged enemy belligerent,'' in turn, as a person who does not
belong to any of the eight categories listed in Article 4 of the Third
Geneva Convention--the categories defining eligibility for POW status
in international armed conflict--and who:
---------------------------------------------------------------------------
\1\ Military Commissions Act of 2009 Sec. 1802, 10 U.S.C.
Sec. 948c.
---------------------------------------------------------------------------
(A) has engaged in hostilities against the United States or its
coalition partners; (B) has purposefully and materially supported
hostilities against the United States or its coalition partners; or (C)
was a part of Al Qaeda at the time of the alleged offense under this
chapter.
One can readily imagine Warsame-type fact patters that simply do
not qualify under these standards, as well as situations (possibly like
Warsame's own scenario) in which the task of producing evidence in
court to satisfy these standards would require the Government to go
public with intelligence that it would much prefer to keep secret.
And then there is the option of a civilian criminal trial. The
question here is not one of ``personal jurisdiction,'' but simply
whether the person has in fact committed a Federal crime. There are, as
it happens, a great many Federal crimes relating to terrorism that are
now applicable to noncitizens acting abroad, including both the 1994
and the 1996 material support statutes.
*For a period in 2009 I served as an advisor to the Detention
Policy Task Force, established under Executive Order 13493. I write
solely in my personal capacity, of course, and nothing said here should
be taken to reflect the views of that Task Force or any other person or
department.
Mr. Conaway. If the U.S. and Guantanamo Bay are deemed unviable
options, where can (should) these types of terrorist suspects be held
as they away their trial by military commission?
Mr. Chesney. If we begin from the premise that neither the United
States nor GTMO may be used as the location for detention (of whatever
variety), the options are slim.
Option 1 is to attempt to bring the individual to Afghanistan.
There are several problems with this. First, it is not as if we have
complete discretion to bring persons from abroad into custody in
Afghanistan. A combination of diplomatic and other considerations may
forbid this in actual practice in some cases. Second, our detention
facilities in Afghanistan are no more likely to be permanent than were
the facilities we used to run in Iraq; even if you can use this option
this year, in short, you probably will not have the option two or three
years from now, at which point you must find an alternative after all.
Option 2 is to keep the individual aboard ship. As explained in my
original testimony, this is a controversial measure to say the least,
and would certainly not be lawful in an international armed conflict.
The law is much less determinate on this question with respect to non-
international armed conflicts, though I am confident that there would
be fierce criticism on both policy and legal grounds were this to be
attempted for more than temporary detention purposes.
There are no other obvious options if U.S.-based and GTMO-based
detention are excluded, except perhaps temporary custody in the hands
of a cooperative third-party state.
______
QUESTIONS SUBMITTED BY MR. SMITH
Mr. Smith. Please discuss how habeas case law impacts authorities
of AUMF, including targeting.
Mr. Mukasey. Habeas case law, insofar as it deals with prisoners
detained in connection with operations against those engaged in
terrorist activities against the United States, necessarily has the
effect of defining who may and who may not be detained under the
authority of the AUMF. However, in doing so, such cases necessarily
define the substantive reach of the AUMF itself, and thus not only who
may be detained but also who may be the object of military action. Thus
a case intended to deal only with whether a particular person may be
detained may determine that that person is outside the reach of the
AUMF because he has not been shown to receive direction from one of the
groups involved in the 9/11 attacks or to provide significant support
for such a group. Yet in the absence of other authority, lawyers may
look to such a case when they are trying to determine whether it is
lawful to target particular people when there is no way to make such a
determination before an engagement.
Mr. Smith. Please discuss the pros and cons with holding Article
III proceedings at Guantanamo Bay.
Mr. Mukasey. In my view, there are many cons and virtually no pros.
As to crimes committed within the United States, Article III requires
that prosecutions be tried in the district where the crime was
committed, in whole or in part. As to crimes committed outside the
United States that may nonetheless be prosecuted in an Article III
court, there is no legislation designating Guantanamo as a place of
holding court in any district in this country. Even if there were, one
would then have to transport a jury from a district in this country to
Guantanamo, and house them there possibly for months while maintaining
their anonymity (lest they or their families be subject to reprisals)
and preserving their impartiality. In order to select the jury, one
presumably would have to transport a sizeable venire of potential
jurors, unless the defendants are not permitted to attend jury
selection or to attend only by remote electronic hook-up. It is simply
not feasible.
Guantanamo is remote, secure and humane. Those are the things it
has going for it. But it is simply not suitable as a place for
convening an Article III court absent additional legislation and
serious obstacles to the process.
Mr. Smith. In your opinion, are there any remaining gaps in the
legal framework for detainees? If so, please describe these gaps and
your recommendations for filling them.
Mr. Mukasey. I believe the principal gap is that we lack
legislation the provides specific authorization to detain people who
are intent on waging war against this country, with guidelines for who
should be detained, where, and with what safeguards to assure that
continued detention is necessary. Instead, we leave such decisions to
the military and other executive agencies in the first instance, and to
the courts when cases are brought by detainees. This means that we run
the risk of inconsistent decisions made by people who do not have the
political competence or indeed the actual competence to make them, with
the possibility that people who should be detained will instead be
released to rejoin the fight against us.
Mr. Smith. Please provide any additional thoughts or information
that you were not able to share with the committee during the hearing
as well as any other points you would like to clarify.
Mr. Mukasey. Perhaps the main thought I was not able to share lies
somewhat beyond the jurisdiction of the committee. I believe that faced
with a binary choice between military commissions and Article III
courts, we should try cases involving activity abroad almost
exclusively before military commissions, and give them the resources
and support they need to fulfill their mandate. But I think we may
question whether military commissions are suited to carry this burden
for the long term. We have used military commissions throughout our
history, but only episodically rather than over a long period. Running
a parallel justice system is not the principal mission of the military,
which is there to win wars. I think we should consider creating a
national security court to handle these cases with procedures that are
flexible and streamlined enough to deal with the conditions of
battlefield capture that do not allow for the kind of evidence
gathering we require in Article III courts and yet rigorous enough to
handle cases in a way that warrants respect for the outcome.
Mr. Smith. Please discuss the pros and cons with holding Article
III proceedings at Guantanamo Bay.
Mr. Dell'Orto. I must preface my answer by stating that I do not
know that such a proceeding could be held at Guantanamo Bay under the
law. I defer to Judge Mukasey and the views he expressed at the hearing
about whether an Article III court could be empowered to sit at
Guantanamo Bay under the Constitution. In responding to the question, I
will assume for the sake of the answer that an Article III court with
appropriate jurisdiction could sit at Guantanamo Bay. Among the pros
would be the avoidance of the controversy, both international and
domestic, regarding the military commission as the appropriate forum
for terrorism-related criminal trials. Moreover, the full resources of
the Department of Justice would be brought to bear in the prosecution
of the defendants. As for cons, the Federal Rules of Evidence, which
would govern in an Article III proceeding are much more restrictive
regarding the admissibility of evidence than those rules of evidence
formulated for use in a military commission. The risk that crucial,
credible evidence might not be placed before the finder of fact in an
Article III proceeding because of exclusionary rules designed to deter
police misconduct, but never designed with a view to application on a
battlefield, is unacceptable to me and terribly unfair to the victims
of the acts that would be subject of the trials. Those sitting in
judgment as jurors, unlike in a military commission, would be ordinary
citizens unversed in the significant and unique aspects of the conduct
of warfare that is at the heart of the crimes for which the defendants
would be charged. Should our current conflict end and we find ourselves
in a future, more conventional, conflict against a nation state and its
armed forces, as was the case in World War II, we would face the
argument that the heretofore historically significant and successfully
conducted military commission would be an inappropriate forum for the
trial of war criminals and thus only an Article III proceeding could be
utilized.
Mr. Smith. In your opinion, are there any remaining gaps in the
legal framework for detainees? If so, please describe these gaps and
your recommendations for how best to address them.
Mr. Dell'Orto. I believe that the Law of Armed Conflict provides a
strong framework for addressing many of the legal issues related to
detainees, both prior to and after their capture. The one gap that does
exist under that framework is what becomes of the detainees at the end
of the conflict. In recent conflicts, an end of hostilities signaled an
end of the authority for detention of those captured on the
battlefield. The end of hostilities meant just that and it was
understood that each side to the conflict would agree that the conflict
had ended and would assert control over its nationals so as to ensure
that hostilities were, indeed, concluded. Given the unprecedented
nature of the current conflict, it is difficult to envision a
``typical'' sign that hostilities have been concluded. There will be no
nation and no government to which to turn with the expectation that
someone or some authority will direct that those we have detained are
to return to their farms, fields and factories with the understanding
that their wartime service is now concluded and they will no longer
bear arms against a recent enemy. The fact is that we currently detain
significant numbers of individuals who have affirmatively signaled that
they have no intention of giving up the fight, regardless of what any
Al Qaeda ``leader'' might ever do in the way of affirmatively
indicating that Al Qaeda's war against the United States is concluded.
Faced with a population over which no nation and no government would
have control, the U.S. cannot just turn this population loose, and yet
at the pace at which we are now killing off Al Qaeda leadership, there
may come a time when we no longer face an organized enemy, a point at
which we conclude that hostilities have ended. To the best of my
knowledge, there is no existing legal framework under which we would
have the authority to continue to detain individuals who would pose a
continuing threat. The one solution I propose for addressing this gap
is the statutory formation of a national security court, perhaps along
the lines of the Foreign Intelligence Surveillance Act Court, which
would have jurisdiction over the determination of whether there should
be continued detention of such individuals under an objective standard.
Mr. Smith. Please provide any additional thoughts or information
that you were not able to share with the committee during the hearing,
as well as any other points you would like to clarify.
Mr. Dell'Orto. As I stated in my statement to the Committee, I had
the privilege of serving as an active duty Army officer for more than
twenty-seven years and as a senior civilian attorney in the Department
of Defense Office of General Counsel for nine years, including during
the period immediately before, on, and after September 11, 2001. To the
extent that I provided legal advice on many of the issues under
consideration by the Committee, including interpretation of the
authority provided by the original Authorization for the Use of
Military Force, the development of the military commission framework,
the decision to establish the detention facilities at Guantanamo, the
review of interrogation techniques, and a host of other critical issues
associated with our current conflict, I continue to believe that the
decisions made to address those issues were sound and have withstood
the test of time and unceasing legal challenge. I continue to believe
that Guantanamo is the best location for continued detention of those
we have captured, regardless of location of capture, in the war against
Al Qaeda and its various affiliates. I continue to believe that a
military commission at Guantanamo is the appropriate forum for the
trial of those enemy combatants charged with violations of the law of
armed conflict. And I continue to believe that we should ensure that
commanders, from the President down to the most junior squad leader,
have as much authority as possible to carry the fight to the enemy.
Mr. Smith. Please discuss how habeas case law impacts authorities
under the AUMF, including targeting.
Mr. Chesney. Much of the GMTO habeas caselaw concerns either the
process of the habeas proceedings themselves or the sufficiency of the
evidence in particular cases. But there also are opinions that speak
directly to the interpretation of the AUMF. Specifically, there are
cases that address which groups fall within the scope of the AUMF, and
also what conduct or associations suffice to render a particular
individual so connected to an AUMF-covered group as to make the AUMF
relevant for that person.
The interesting question this raises is whether these holdings have
an impact on other activities, unrelated to GTMO, that the U.S.
Government undertakes under color of the AUMF. The possibilities
include both detention and the use of lethal force, whether in
Afghanistan or anywhere else in which an AUMF-related target might
become the target of an attempted capture or a lethal strike. In
theory, this caselaw should indeed matter for judge advocates and other
Government attorneys who may be in the position of advising military or
civilian officials on the legal boundaries of detention and targeting
authority in such circumstances. If a Federal court has held in any
context that the AUMF does or does not reach some particular group, or
does or does not encompass some particular individual fact pattern,
this could hardly be dismissed as irrelevant when the exact same
question arises in the field; the fact that this other circumstances is
not likely to come up for habeas review does not change this, though of
course it impacts the likelihood that an outside authority will step in
to impose checks on the Government's course of action. Having said all
that, I'm not in a position to say whether this theoretical point is
observed in actual practice.
*For a period in 2009 I served as an advisor to the Detention
Policy Task Force, established under Executive Order 13493. I write
solely in my personal capacity, of course, and nothing said here should
be taken to reflect the views of that Task Force or any other person or
department.
Mr. Smith. Please discuss the pros and cons with holding Article
III proceedings at Guantanamo Bay.
Mr. Chesney. The primary advantages of holding a civilian criminal
trial at GTMO are that it would (i) pose less risk that a detainee upon
acquittal or release from custody would succeed in litigation
challenging that person's removal to their country of origin or some
other country, and (ii) spare communities in the United States from
whatever expenses, disruptions, and security risks might follow from
convening various trials on the mainland. The primary disadvantages are
that (i) the choice of the GTMO location would, fairly or not, tarnish
the perception of legitimacy that otherwise would attach to the
prosecution (though not necessarily a great deal), (ii) difficult
question would arise with respect to impaneling a jury (though not
necessarily insurmountable ones, as there is a sizeable community
living at GTMO and it is not automatically the case that all or even
most residents would be disqualified from service), and (iii) this
presumably would require creation of a new Federal judgeship and,
hence, the ``mother of all confirmation hearings'' as I put it during
my spoken testimony.
Mr. Smith. In your opinion, are there any remaining gaps in the
legal framework for detainees? If so, please describe those gaps and
your recommendations for how best to address them.
Mr. Chesney. I'm not sure if this qualifies as a gap, but I do
think that Congress has created a significant obstacle to the use of
military detention in the conflict with Al Qaeda insofar by imposing
such sweeping constraints on the ability of the President to transfer
detainees away from GTMO when circumstances warrant. Combined with the
lack of plausible long-term detention options, this discourages
reliance on captures, and instead creates incentives to merely monitor
as best as can be done, to plead for action by third countries, or to
use lethal force where that is a lawful alternative.
Separately, Congress needs to anticipate the likely withdrawal of
American forces from Afghanistan at some point in the next few years.
Once U.S. forces are no longer engaged in sustained combat operations
that at least somewhat relate to Al Qaeda, some will argue that there
is no longer any foundation for treating the law of armed conflict as
applicable vis-a-vis Al Qaeda, the Taliban, and associated forces--and
hence that GTMO detention no longer has a legal basis. This argument
may or may not prevail, but one can be certain that it will be raised
through a new round of habeas petitions, and it has some chance of
succeeding. If Congress actually wishes for the currently-existing
scope of detention authority to continue to exist without respect to
the status of our Afghanistan deployment, it should not simply wait for
these arguments to develop and then hope that judges take one
particular view on a sharply-contested question. Instead, it should
directly and explicitly legislate the authority it wishes for the
President to have--i.e., it should provide the requisite detention
authority as a matter of domestic law, making clear the grant of this
authority rather than hoping for it to be implied via contested claims
regarding background principles of the law of armed conflict.
Mr. Smith. Please provide any additional thoughts or information
that you were not able to share with the committee during the hearing,
as well as any other points you would like to clarify.
Mr. Chesney. I have no further thoughts to share at this time,
except to reemphasize my bottom-line: the goal should be to maximize
the array of lawful and legitimate options available to the President
to employ in particular cases based on the advice of military,
intelligence, and law-enforcement professionals.
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