[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]
[H.A.S.C. No. 111-87]
REFORMING THE MILITARY COMMISSIONS
ACT OF 2006 AND DETAINEE POLICY
__________
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
HEARING HELD
JULY 24, 2009
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HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Eleventh Congress
IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina HOWARD P. ``BUCK'' McKEON,
SOLOMON P. ORTIZ, Texas California
GENE TAYLOR, Mississippi ROSCOE G. BARTLETT, Maryland
NEIL ABERCROMBIE, Hawaii MAC THORNBERRY, Texas
SILVESTRE REYES, Texas WALTER B. JONES, North Carolina
VIC SNYDER, Arkansas W. TODD AKIN, Missouri
ADAM SMITH, Washington J. RANDY FORBES, Virginia
LORETTA SANCHEZ, California JEFF MILLER, Florida
MIKE McINTYRE, North Carolina JOE WILSON, South Carolina
ROBERT A. BRADY, Pennsylvania FRANK A. LoBIONDO, New Jersey
ROBERT ANDREWS, New Jersey ROB BISHOP, Utah
SUSAN A. DAVIS, California MICHAEL TURNER, Ohio
JAMES R. LANGEVIN, Rhode Island JOHN KLINE, Minnesota
RICK LARSEN, Washington MIKE ROGERS, Alabama
JIM COOPER, Tennessee TRENT FRANKS, Arizona
JIM MARSHALL, Georgia BILL SHUSTER, Pennsylvania
MADELEINE Z. BORDALLO, Guam CATHY McMORRIS RODGERS, Washington
BRAD ELLSWORTH, Indiana K. MICHAEL CONAWAY, Texas
PATRICK J. MURPHY, Pennsylvania DOUG LAMBORN, Colorado
HANK JOHNSON, Georgia ROB WITTMAN, Virginia
CAROL SHEA-PORTER, New Hampshire MARY FALLIN, Oklahoma
JOE COURTNEY, Connecticut DUNCAN HUNTER, California
DAVID LOEBSACK, Iowa JOHN C. FLEMING, Louisiana
JOE SESTAK, Pennsylvania MIKE COFFMAN, Colorado
GABRIELLE GIFFORDS, Arizona THOMAS J. ROONEY, Florida
NIKI TSONGAS, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
GLENN NYE, Virginia
CHELLIE PINGREE, Maine
LARRY KISSELL, North Carolina
MARTIN HEINRICH, New Mexico
FRANK M. KRATOVIL, Jr., Maryland
ERIC J.J. MASSA, New York
BOBBY BRIGHT, Alabama
SCOTT MURPHY, New York
DAN BOREN, Oklahoma
Erin C. Conaton, Staff Director
Paul Oostburg Sanz, General Counsel
Roger Zakheim, Professional Staff Member
Caterina Dutto, Staff Assistant
C O N T E N T S
----------
CHRONOLOGICAL LIST OF HEARINGS
2009
Page
Hearing:
Friday, July 24, 2009, Reforming the Military Commissions Act of
2006 and Detainee Policy....................................... 1
Appendix:
Friday, July 24, 2009............................................ 49
----------
FRIDAY, JULY 24, 2009
REFORMING THE MILITARY COMMISSIONS ACT OF 2006 AND DETAINEE POLICY
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
McKeon, Hon. Howard P. ``Buck,'' a Representative from
California, Ranking Member, Committee on Armed Services........ 2
Skelton, Hon. Ike, a Representative from Missouri, Chairman,
Committee on Armed Services.................................... 1
WITNESSES
Johnson, Hon. Jeh Charles, General Counsel, U.S. Department of
Defense........................................................ 4
Kris, Hon. David, Assistant Attorney General, U.S. Department of
Justice........................................................ 5
APPENDIX
Prepared Statements:
Johnson, Hon. Jeh Charles.................................... 53
Kris, Hon. David............................................. 58
Documents Submitted for the Record:
July 21, 2009, letters to Mr. Skelton from the Department of
Defense and the Department of Justice...................... 67
Department of Defense Military Commissions list submitted by
Mr. Forbes................................................. 70
Witness Responses to Questions Asked During the Hearing:
[There were no Questions submitted during the hearing.]
Questions Submitted by Members Post Hearing:
Mr. McKeon................................................... 77
Mr. Skelton.................................................. 75
REFORMING THE MILITARY COMMISSIONS ACT OF 2006 AND DETAINEE POLICY
----------
House of Representatives,
Committee on Armed Services,
Washington, DC, Friday, July 24, 2009.
The committee met, pursuant to call, at 10:05 a.m., in room
2118, Rayburn House Office Building, Hon. Ike Skelton (chairman
of the committee) presiding.
OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM
MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES
The Chairman. The committee will come to order. Today's
hearing will continue the constructive conversation that we
began last week with the top military attorneys of the services
on reforming the Military Commissions Act of 2006. I look
forward to hearing the perspectives of today's distinguished
witnesses on what amendments are needed to ensure that we
finally end up with a system that can withstand judicial
scrutiny and ensure that convictions stick. We certainly
welcome our witnesses' thoughts on what legislative changes are
most necessary and how the existing law can be improved.
In addition to military commissions reforms, today's
hearing addresses other key detainee policy issues such as the
closure of the detention facilities at Guantanamo Bay, Cuba,
and the law-of-war detention. We initially had hoped that a
major report addressing these critical issues would have been
released earlier this week, as required by the President's
Executive orders from the beginning of the year.
Instead the Inter-Agency Task Force that was established to
produce such a report received a six month extension and issued
a preliminary report. The preliminary report reiterates the
Administration's proposed changes to the military commissions
system and begins to describe the process and criteria that the
Attorney General will use to determine whether to prosecute a
detainee in Federal criminal court or in a military tribunal.
It does not, however, make recommendations on the details of
Guantanamo's closure or on the process for continuing to detain
enemy combatants or belligerents who, for different reasons,
cannot be prosecuted in any of our courts.
As the Detainee Task Force and the separate Inter-Agency
Review Team that is evaluating all the files of the Guantanamo
detainees finalize their work in the coming months, I am
confident that they will recommend policies which will keep
America safe and conform to American values.
Nevertheless, I want to offer a few words of advice from a
former country prosecutor. Although I continue to believe that
the closure of the detention facilities in Guantanamo will keep
and help restore our country's reputation and moral standing
around the globe, I am concerned that time is running out for
meeting the President's deadline. With little more than five
months to go, the lack of details on how Guantanamo should be
closed, or detainees will be transferred, what prosecutions
will be taken to protect communities, the costs associated with
the closure decision, and the range of related considerations
is, frankly, disturbing. A detailed plan should be proposed as
soon as possible. To maintain congressional support for the
closure decision, this forthcoming plan should safeguard
America and be able to be implemented in the little time that
is left.
With regard to detainees who cannot be prosecuted but also
cannot be allowed to return to the battlefield, the
Administration should:
One, clarify the President's authority to detain these
individuals, regardless of where they are held, and state
whether legislation is needed to augment his authority to
detain.
Two, propose a process to replace the Administrative review
boards in Guantanamo and similar bodies in Afghanistan with
something that is more independent and viewed as legitimate.
And lastly, third, indicate what factors will be considered
to determine when an end of hostilities has been achieved and
thus continued detention is no longer justified under the
Supreme Court's Hamdi decision and the laws of war.
Before I turn to the gentleman from California, let me
mention that today's witnesses are the Honorable Jeh Charles
Johnson, who is the General Counsel for the Department of
Defense [DOD], and the Honorable David Kris, Assistant Attorney
General, United States Department of Justice [DOJ].
Now I turn to my good friend, my colleague, the
distinguished Ranking Member from California, Mr. McKeon.
STATEMENT OF HON. HOWARD P. ``BUCK'' MCKEON, A REPRESENTATIVE
FROM CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. McKeon. Thank you, Mr. Chairman. I thank you for
holding this hearing on this important topic, the
Administration's detainee policy and its plan for reforming the
Military Commissions Act of 2006.
Let me begin by welcoming our witnesses, the Honorable Jeh
Johnson, General Counsel for the Department of Defense, and the
Honorable David Kris, Assistant Attorney General Department of
Justice. Gentlemen, good morning. Thank you for being here.
On October 22, 2009 the President stood before the American
people and announced that he would uphold his political promise
to close Gitmo within a year and suspend all military
commissions pending a review by the Administration. I do not
want to make this a political issue. I think if Senator McCain
had been elected, he probably would have done the same thing.
Let me say that at the outset. Additionally, the President
announced the creation of a Detainee Task Force that would
review America's current terrorist detention policies and
practices and recommended a path forward within six months.
Mr. Chairman, many in Congress were skeptical of this
approach. It seemed unwise to have a policy to close Gitmo
without a plan. We immediately pointed to the danger of
establishing a definite date to close Gitmo without first
having identified an alternative location to detain these
dangerous terrorists. Additionally, we warned that a policy
vacuum from the executive branch would be filled by unelected
judges who were not accountable to the American people. Our
ultimate concern was that our military personnel serving in
Iraq and Afghanistan could be vulnerable because of a lack of
specific guidance from the Commander in Chief.
I had the opportunity Monday with three of my colleagues to
go to Gitmo, and it was quite an education. And I have a solid
view of what I think should be done there now, and probably
different from what I would have thought a week ago. But as we
were flying back from Gitmo, we received notice that the
Administration would not meet the President's self-imposed six
month deadline for meeting the President's new detention
policy.
This delay is disturbing on many levels and deserves the
attention of the American people. On one hand, I commend the
President for the delay. On the other hand, it puts the trials,
things that we are working on down there, in suspension that I
think cause some real problems. So we are kind of between a
rock and a hard place on this.
Earlier this year I joined with many in Congress to support
legislation which would have required the President to notify a
State Governor and legislature 60 days prior to the transfer or
release of a Gitmo detainee into their State; number two,
obtain the consent of the State Governor and legislature to the
transfer board release; and three, certify that the transfer or
release of a Gitmo detainee would not adversely affect the
national security of the United States or residents of the
United States.
Similar language was adopted by this committee in the House
NDAA [National Defense Authorization Act]. In other words,
Congress has made a bipartisan statement that it cannot fund
any policy until it receives a plan.
Given the six month extension for the Detainee Policy Task
Force and the President's self-imposed deadline to close Gitmo
by January 2010, I am concerned Congress will be handed a
predetermined outcome. This would be an unacceptable outcome.
Given the vacuum of information surrounding the
Administration's detainee policy, today's testimony takes on
even greater importance.
Let me briefly lay out my views on the issues I expect our
witnesses should cover today.
Mr. Chairman, a comprehensive detention policy must include
a strengthened authority to detain and a preventative detention
framework; a plan for detaining high-valued detainees captured
outside Iraq and Afghanistan where they will not have habeas
corpus review; a plan that ensures Federal courts do not
release detainees from Gitmo into the United States; and a
clear framework that does not favor prosecuting detainees in
Federal criminal courts but prosecutes violations of the laws
of war in military commissions; a commission system that
protects sensitive sources and methods and is tailored for the
exigencies of the battlefield; and, finally, a plan that
ensures that detainees we transfer or release from U.S. custody
do not return to the battlefield and threaten our forces or
citizens.
It is the issue of transfer and release that gives me
pause. When I visited Gitmo on Monday, one of our briefers
showed us a picture of a former detainee that was released
because he was compliant and seemed to no longer pose a threat.
The picture showed him holding a child. It turned out we were
wrong. He later blew himself up and killed 25 people in
Baghdad. We have been wrong, according to DIA [Defense
Intelligence Agency], 14 percent of the time.
I fear we are getting it wrong in Iraq and Afghanistan,
too. Just this week the New York Times reported that detainees
released from American prisons in Iraq could have been the ones
that carried out an attack on a restaurant, wounding scores of
people. Every time we get it wrong, the consequences are fatal.
We need to be honest about the risk of releasing detainees into
Iraq, Afghanistan, and especially the United States.
I look forward to your testimony, and I hope that the
discussion we have today will give this Congress and the
American people a better understanding of the President's
detainee policy.
Thank you and I yield back.
The Chairman. I certainly thank the gentleman.
We now will hear from our witnesses. We look forward to
your testimony.
Mr. Johnson, we recognize you first.
STATEMENT OF HON. JEH CHARLES JOHNSON, GENERAL COUNSEL, U.S.
DEPARTMENT OF DEFENSE
Mr. Johnson. Thank you, Mr. Chairman, Congressman McKeon,
members of this committee. You have my prepared advanced
statement. I apologize for the lateness of getting that to you.
In the interest of time I will----
The Chairman. Let me interrupt. Without objection, the
statements of the two witnesses will be entered in toto in the
record.
Mr. Johnson. In the interest of time I will just read an
abbreviated version. On January 22, 2009, as was pointed out,
President Obama signed executive orders 13492 and 13493 which
establish two interagency task forces, one to review the
appropriate disposition of the detainees currently held at
Guantanamo Bay, and another to review detention policy
generally. These task forces consist of officials from the
Departments of Justice, Defense, State, and Homeland Security,
and from our U.S. military and intelligence community.
Over the past six months, these task forces have worked
diligently to assemble the necessary information for a
comprehensive review of our detention policy and the status of
detainees held at Guantanamo Bay.
I am pleased to appear today, along with David Kris of the
Department of Justice, to report on the progress the government
has made in a few key areas, including especially military
commissions reform.
Let me begin with some general observations about the
progress. All told, about 780 individuals have been detained at
Guantanamo. Approximately 550 of those have been returned to
their home countries or resettled in others. At the time this
new Administration took office on January 20, 2009, we held
approximately 240 detainees at Guantanamo Bay. The Detainee
Review Task Force has reviewed and submitted recommendations on
more than half of those.
So far, the Detainee Review Task Force has approved the
transfer of substantially more than 50 detainees to other
countries, consistent with security and treatment
considerations, and a number of others have been referred to a
DOJ-DOD [Department of Justice-Department of Defense]
prosecution team for potential prosecution either in an Article
III Federal court or by military commission.
Additional reviews are ongoing and the process, we believe,
is on track. We remain committed to closing the Guantanamo Bay
detention facility within the one year time frame ordered by
the President.
A bipartisan cross-section of present and former senior
officials of our government and senior military leaders have
called for the closure of the detention facility at Guantanamo
Bay to enhance our national security, and this Administration
is determined to do that.
The one other thing I would like to add is we talk a lot
about closing the Guantanamo Bay detention facility, and as
some of you on this committee know who visited there, the
military personnel at that facility are truly professional. And
so our discussions about closing that facility should in no way
reflect upon what I believe is the first-rate dedication and
professionalism of that guard force.
Thank you.
The Chairman. I certainly thank the gentleman.
[The prepared statement of Mr. Johnson can be found in the
Appendix on page 53.]
The Chairman. Mr. Kris.
STATEMENT OF HON. DAVID KRIS, ASSISTANT ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE
Mr. Kris. Thank you, Mr. Chairman, Representative McKeon
and members of the committee. Thank you for inviting me here.
This is my first appearance for this committee. For the
Department of Justice, I normally appear before the Judiciary
or the Intelligence Committees. So I thought I would just begin
by way of introduction to explain the work that I do and how it
relates to that of the committee, particularly with respect to
military commissions.
I lead the Justice Department's National Security Division
[NSD] which is the organizational unit that combines all of
DOJ's major national security functions and personnel. And our
essential mission is to protect national security using all
lawful methods consistent with civil liberties and the rule of
law, including but not limited to prosecutions in Article III
courts and in military commissions.
In the previous Administration, the National Security
Division assembled a team of experienced Federal prosecutors
drawn from across the country to assist DOD's Office of
Military Commissions [OMC] and litigate cases at Gitmo. That
assistance will continue. The man who led that team for NSD,
who is a 15-year career DOJ prosecutor, is now my deputy, and a
former member of the team has since been recalled to Active
Duty and is the chief prosecutor in OMC.
As the President has explained, when prosecution is
feasible and otherwise appropriate, we will try terrorists in
Federal court. I prosecuted a group of violent extremists in
the 1990s. Like their more modern counterparts, they engaged in
what would now be called, I think, lawfare, and the trials were
very challenging. But the prosecution succeeded not only
because it incarcerated the defendants, some of them for a very
long time, but also because it deprived them of any shred of
legitimacy in their antigovernment beliefs.
Military commissions can help do the same for those who
violate the laws of war. That is, not only detain them for
longer than might otherwise be possible under the laws of war,
but also brand them as illegitimate war criminals.
To do this effectively, however, the commissions themselves
must first be reformed. And the legislation now pending in the
Congress is a tremendous step in that direction. You know from
my written testimony and that of Mr. Johnson, that the
Administration very much appreciates the pending legislation
and supports much of it.
Although I can't refer here to precise numbers, as Mr.
Johnson said, a significant number of cases have been referred
for possible prosecution by joint teams of officials from DOJ
and DOD. That review is governed by a protocol that we have
released publicly, and I think it would be worth just
explaining the three essential principles that are embodied in
that protocol.
The first is, as the President stated in his speech at the
National Archives, we need to use all elements of our national
power to defeat our adversaries, and that is including but not
limited to prosecution in both Article III courts and in
military commissions.
Second, Article III courts which have unquestioned
legitimacy are also effective in protecting national security.
And military commissions as we propose to reform them, which
have unquestioned effectiveness, are also fair and legitimate.
Now, I suspect there are many people in this room or
perhaps elsewhere who might agree only with the first part of
that sentence that I just stated, and there will be others who
agree only with the second part. But we think both parts are
right, and that leads really to the third and final principle.
The choice between the two available prosecutorial for a
need to be made by professionals based on a close and careful
review of the facts of each case, using criteria established by
policymakers, and these are reflected in the protocol. We
cannot afford, consistent with the first two principles I have
discussed, to adopt abstract rules that artificially constrain
and limit our options. That would make us less effective than
we otherwise would be in fighting terrorism.
Thank you.
The Chairman. I thank the gentleman.
[The prepared statement of Mr. Kris can be found in the
Appendix on page 58.]
The Chairman. It seems to me there are two polestars in
this whole issue before us. The first is that any conviction,
whether it be by a tribunal or a Federal court, meet judicial
scrutiny and that those convictions stick, that they be upheld.
The same polestar is the necessity of keeping American citizens
safe. Whatever comes to pass, this must--these two polestars
must be kept in mind.
I will not take a great deal of time, but I do wish to ask
about the one category that seems to be the most troubling. And
Mr. Johnson, I will call upon you to give us your best legal
opinion.
There are some in custody in Guantanamo today that could
not be tried in a Federal court, and, even with relaxed hearsay
evidence, could not be tried in a tribunal. But we know full
well by other evidence, including their own statements, that
they are highly dangerous, and, would, should they be turned
loose, attempt to take American lives as well as lives of our
allies.
What do you propose to do with that group of inherently
dangerous inmates at Guantanamo if you can't try them in either
tribunal--but you know full well what they will do if turned
loose?
Mr. Johnson. Mr. Chairman, thank you for that question. The
ability and the authority of our United States military to
capture and detain the enemy is as old as the Army itself. It
is a basic concept inherent in what the U.S. military does:
capture and detain.
And as recently as 2004, the Supreme Court, in the Hamdi
decision, reiterated that inherent within the authorization
granted by Congress in 2001 to go to war was the ability to
detain those who are captured.
Now, this President and this Administration in March
revised the definition of our detention authority to more
closely align detention authority with the authorization that
Congress passed in 2001, the AUMF, the Authorization for Use of
Military Force as informed by the laws of war. We believe that
that definition, which we are now using in the courts with
respect to Guantanamo, is the appropriate and sufficient legal
authority to detain people who you have referred to, Mr.
Chairman, as those who are threats to the American people,
threats to our national security, but for whom we do not choose
to prosecute.
The Chairman. In other words, they could be held as long as
the war continues.
Mr. Johnson. What the President said in his National
Archives speech is that for that category of people, if we have
such people at the end of this review process, there should be
clear, defined legal standards and there should be a periodic
review, so that if we prevail in a habeas case and we don't
prosecute them, we are not just throwing away the key. There is
a periodic review that ought to be in place to do a form of
threat assessment.
The Chairman. But how long do you keep them? Until they get
old and gray and pass away? Or how long can you legally keep
them under your test, under your legal test?
Mr. Johnson. Under traditional concepts, as you pointed
out, you keep them until the end of the war.
The Chairman. But there is no one in an insurgency or a
guerrilla warfare to run up the white flag and sit down and
sign a peace treaty. So what then?
Mr. Johnson. That is absolutely correct. We are not going
to see a peace treaty signed on a battleship, which is why we
believe that some form of periodic review--I don't know whether
that is every couple of months, every year or so--is
appropriate to do a threat assessment of that particular
detainee. And that part of the work of this task force is to
develop that form of periodic review.
The Chairman. As the gentleman from California pointed out,
there has been one from Afghanistan that was reengaged in the
conflict, and I have in front of me an unclassified
documentation of others that have been repatriated and have
reengaged in one place or the other.
How do we assure the American people that is not going to
happen?
Mr. Johnson. What I can assure the American people is that
when I and my colleagues at the Department of Defense go
through this review process and look at threat assessments,
look at the classified and unclassified evidence that we have
about each detainee, the thing that weighs most on my mind
certainly is, is this a person who is going to return to the
fight? And to me that is the most important factor, evaluating
that consistent with the law, consistent with the rule of law.
So it is a thing that motivates us one way or another, frankly.
We are all very cognizant of those statistics.
The Chairman. Since January the 20th of this year, to your
knowledge, have any of those that have been released become
involved in reengagement?
Mr. Johnson. Sitting here right now, I don't think I could
give you that information. Sorry.
The Chairman. Have some been released since January the
20th of this year?
Mr. Johnson. Certainly some have been transferred to other
countries. Mr. Binyam Mohamed, for example, was sent back to
the U.K. [United Kingdom], I believe.
The Chairman. Do you understand my concern?
Mr. Johnson. I certainly do. It is my concern as well.
The Chairman. Mr. McKeon.
Mr. McKeon. Thank you, Mr. Chairman. The Administration has
expressed a preference for trying the detainees in Article III
courts. Do you share that same preference?
Mr. Johnson. Is that for me, Congressman?
Mr. McKeon. Both of you.
Mr. Johnson. Mr. Kris and I have worked out a protocol for
determining when a case should be prosecuted in Article III
versus military commissions. I think the document is public,
and basically what the protocol says is that there is a
presumption that, where feasible, referred cases will be
prosecuted in an Article III court in keeping with traditional
principles of Federal prosecution. Nonetheless, where other
compelling factors make it more appropriate to prosecute a case
in a reformed military commission, it may be prosecuted there.
And then the document goes through three sets of factors
that are kind of traditional factors prosecutors look at to
determine whether a case that is prosecutable should be
prosecuted in one forum or another. I suspect that will be a
fact-intense, case-by-case review, sir.
Mr. McKeon. One of the concerns I have in looking at that
is it seems like you go through a preliminary judgment then. Do
you think that that would prejudice a case?
Mr. Johnson. The document itself--I was concerned about
that very issue when we negotiated the document, and I would
not want some line prosecutor or the media to think that we
prejudged a case because we have referred it to one forum or
another and that therefore you must indict that case.
So at the end of the document, it refers to the
independence of authorities; that however the protocol works,
it is still up to the U.S. attorney or the chief prosecutor in
the military commission to exercise their own independent
judgment in making the determination that a case can and should
be prosecuted. You can't, for example, eliminate grand juries
that are going to make their own decisions in these cases, nor
should we.
Mr. McKeon. Is there a concern that by bringing them--I
guess if you tried them under Article III you would bring them
to the United States, try them in a Federal court.
Mr. Johnson. I would assume so; yes, sir.
Mr. McKeon. Is there any concern that they--because that
would happen, then they would pick up additional constitutional
rights that some may feel they shouldn't have?
Mr. Johnson. Well, Mr. Kris could speak to that better. He
is in charge of that process. But, you know, we obviously do
have the rights that we enjoy in Federal criminal prosecutions,
reflected in the Constitution, in the rules of Federal criminal
procedure. And I think DOJ has a pretty good track record in
cases where we have prosecuted alleged terrorists.
Mr. Kris. I would just add sort of two points, I guess,
Congressman. With respect to the way the protocol is going to
work, the first point is that the referrals are made to joint
teams, DOD prosecutors and DOJ prosecutors who are going to
work together on these cases to try to come up with----
Mr. McKeon. We--When we met with the--the four of us that
went to Guantanamo Monday, we had an opportunity to meet with
the lead prosecutor. His preference was that all--all of the
trials be done in the military--by the military commission.
Mr. Kris. Okay. I mean that is really--that is not the
Administration's position that we make a bright-line
determination, sitting here today, that all of the cases be
prosecuted there, but, rather, that they be worked up and
evaluated in a case-by-case, fact-intensive way, looking
carefully at all of the elements of the case and then make a
decision about which is the appropriate forum. But that we do
that working together the way Jeh and I have worked together on
the protocol.
And the second, I guess, point to make about it is that
these kind of forum selection choices are not alien to
government officials. They are similar to choices that have to
be made all the time, whether it be between a Federal and a
State court, between a U.S. court and a foreign court, between
a Federal court and a UCMJ [Uniform Code of Military Justice]
proceeding----
Mr. McKeon. This situation is kind of unique, though, with
the terrorist situation and the problems we have had leading up
to this.
Mr. Kris. You are absolutely right.
Mr. McKeon. Are you concerned at all that dividing up into
two systems and the preference that going to one or the other
might buttress the view that military commissions are second-
class type courts?
Mr. Kris. It is a very good point. First, I don't mean to
minimize the challenges associated with this. It is a unique
situation. We are working hard, Jeh and I and people in our
shops, to do this--to do this right. It is difficult,
challenging, consequential. We think we can do it. We are set
up to do it.
I think it is vitally important on the last point you made
to understand we are working very, very hard with the Congress
now. We are actively discussing amendments to the Military
Commissions Act with the Senate counterpart of this committee.
Mr. McKeon. You are working with the the Congress. Who in
the Congress are you working with?
Mr. Kris. The Senate Armed Services Committee, as you you
pointed out, has reported out a Levin--Senator Levin's bill----
Mr. McKeon. They passed a bill last night--and I have it
here--that they say it is the sense of the Congress that the
preferred forum for the trial of alien unprivileged enemy
belligerents subject to this chapter for violations of the law
of war and other offenses made punishable by this chapter is
trial by military commission under this chapter.
Mr. Kris. I am aware of that and I appreciate that that is
the sense of that committee and a possible sense of the
Congress. What I meant was that--just to respond to the second-
class justice point, we are investing and the Congress is
investing a huge amount of energy and effort to reform the
Military Commissions Act in a variety of ways, as you know, and
we think with those reforms the military commission system
would not be a second-class justice system. It would be a
first-class----
Mr. McKeon. I don't think it is. What my question was do we
think that the perception would be that it is because of this
prejudging and moving some to one trial, some to another?
Mr. Kris. We don't want that, we don't think that, and we
don't want to prejudge. We want to work these cases one at a
time and make a choice on a case-by-case----
Mr. McKeon. But there has to--by definition, there will
have to be some judgment made if you decide one goes here and
one goes there.
Mr. Kris. That is absolutely right.
Mr. McKeon. And then--and we really can't control the
perception of that process once the media or other people get
hold of it. We can't control how the perception will be.
Mr. Kris. Well, it is certainly true that I don't make any
claim to control the media but Mr. Johnson and I are here----
Mr. McKeon. Probably nobody in this room does.
Mr. Kris. But we are here to tell you, and I think to tell
people who are listening to this, that it is not the case that
military commissions as we are proposing to reform them will be
second-class.
Mr. Johnson. Congressman, if I could just add to something.
Mr. McKeon. Sure.
Mr. Johnson. Captain John Murphy is a career professional.
He is the prosecutor, the chief prosecutor you referred to a
moment ago. He has spent 17 years as an assistant U.S.
attorney. Like many of the military officers I encounter, I
would expect him to be bullish and optimistic and proud of his
mission. So it doesn't surprise me that he would tell you that
he thinks we should handle all these cases in military
commissions and that he thinks he can do so.
Mr. McKeon. He is not alone in that. We had a hearing last
week where we had the JAGs [Judge Advocate Generals] here from
each of the services, and I think they also were of the same
opinion.
So, Mr. Chairman, I have another question but I think I may
have used up my time. If we can come back.
The Chairman. I am sure we will have a second round.
I am trying to sit in your shoes to make a determination as
to which forum in which to try a detainee. My judgment would be
your decision would be based upon what type of evidence--in
particular, what type of hearsay evidence could or could not be
offered in each of the two tribunals. In a Federal court before
a jury, there are certain hearsay rules that are quite strict.
In a tribunal my understanding is that certain affidavits,
certain statements that would violate a court hearsay rule,
would be admissible and would cause your recommendation to be
in a tribunal as opposed to a Federal court.
Now, you did determine that a detainee by the name of
Ghailani should be tried in a Federal court, and he was
transferred to the Southern District of New York for
prosecution in the Federal system. What factors went into
determining that, if you may say so, in our forum today?
Mr. Kris. Let me say what I can say, which is Ghailani, the
man who has been transferred, is a bit of a unique case because
he was already under indictment for the East Africa Embassy
bombings in the Southern District of New York where others who
had been indicted with him had already been tried. So I think
it is appropriate to look at that case as a bit of a unique----
The Chairman. That is a bit different circumstance; is that
correct?
Mr. Kris. Yes, it is a bit of a unique case given the fact
that he was already----
The Chairman. All right. Fine. Thank you.
Mr. Ortiz.
Mr. Ortiz. Thank you, Mr. Chairman. And I have a question
for whoever can answer this question, for both of you.
What percentage, if any, of the current detainee population
in Guantanamo are not accused of being associated with al Qaeda
or the Taliban, have not fought against the United States or
coalition forces in Afghanistan, Iraq? Do we have a number that
are still there but have not been accused of aligning
themselves with the Taliban or any of the terrorist groups?
Mr. Johnson. Congressman Ortiz, I don't think I can give
you exact numbers. But what I can say about the current
population at Guantanamo is that the overwhelming majority of
them were captured in what we would consider the conventional
battlefield circumstances in Afghanistan. So I hope that
answers your question. I can't give you exact numbers about
allegiance and so forth.
Mr. Ortiz. They were picked up because of their
association, not because they were involved with any of these
terrorist groups; am I correct?
Mr. Johnson. The overwhelming majority were captured in
conventional battlefield circumstances, where our military was
in Afghanistan pursuant to the authorization of this Congress
in 2001 to engage the Taliban and al Qaeda forces.
Mr. Ortiz. Now, have any of these people that I just
mentioned, have they been tried by any of the courts?
Mr. Johnson. We have had three convictions thus far in
military commissions. Many of us, obviously, believe that we
ought to be able to move more efficiently in those cases, but
so far there have been three convictions.
Mr. Ortiz. But you don't know the number? I mean it could
be five, it could be 50, it could be 100 who are still detained
under those circumstances?
Mr. Johnson. Who are not part of al Qaeda or the Taliban?
Mr. Ortiz. Right.
Mr. Johnson. I suspect that the overwhelming majority are
aligned with those combatant forces. I don't have exact numbers
for you.
Mr. Kris. Congressman, if I could just add, I am not sure
this would be responsive to your question, but almost all of
the 240 detainees who were at Gitmo as of January 20 have filed
habeas corpus petitions with the United States District Court.
And it is through the habeas corpus process that their
detainability under the law of war is being tested, subject to
judicial review by independent Article III judges.
That determination analytically is distinct from a
secondary question--which the word ``accused'' in your question
brings to mind--which is how many have then also been possibly
subjected to prosecution for not just being an unprivileged
belligerent or an enemy combatant, or whatever the term is,
sort of under the law of war, but actually being accused of
crimes or war crimes. That is a smaller subset. But the larger
population are having their detention tested through habeas
corpus.
Mr. Ortiz. I have just one more question, Mr. Chairman.
Mr. Johnson, you stated before the Senate Armed Services
Committee that it was the position of the Administration that
if a detainee was acquitted of alleged crimes, the
Administration may still have the authority to detain that
individual under laws of the war. I mean, if they had been
tried and they were found they were not guilty. This is
something that I myself cannot understand, and maybe the
American people don't understand either. Maybe you can
elaborate a little bit on that.
Mr. Johnson. It is my view as a lawyer, as a lawyer for the
Defense Department, and the view of others that as a matter of
legal authority--not as a matter of circumstances or policy or
judgment--but as a matter of legal authority, if there is
proper law-of-war detention authority for a particular
individual, that is true irrespective of what happens in any
eventual prosecution.
So in your question, if the individual is acquitted, that
would be irrelevant to law-of-war detention authority. Whether
or not we ever actually did that as a matter of policy or
judgment is to me an entirely different question, dependent
upon the circumstances, what happens in that particular case,
and so forth.
I would point out that in one of the three cases, one of
the three convictions, the individual received a life sentence.
The other two received sentences and they have been
transferred.
Mr. Ortiz. The reason I ask this question is going back to
Mr. McKeon's question about that individual who was turned
loose, he goes back and he kills 25 people. I am just wondering
if all these people who believe that they have done nothing
wrong, that they become so angry and so indoctrinated while
they are there, that when they are turned loose they go back
and they turn against us. This is one of the reasons I am
asking you this question.
Mr. Chairman, I know my time is up. I yield back
The Chairman. I thank the gentleman. We have, it appears,
five votes, one 15-minute and four 5-minute votes. We will do
our best to squeeze two questioners in before we go. Mr.
Bartlett and Mr. Taylor.
Mr. Bartlett.
Mr. Bartlett. Thank you very much.
I am, by a number of years, the oldest member of this
committee. I remember when Franklin Delano Roosevelt defeated
Herbert Hoover. I lived through the Great Depression. And you
can't know how deeply grateful I am that this really poor
Depression-era kid could have the opportunity to work and
achieve and one day serve in this Congress. I say that because
I want you to understand the context in which I make these
statements and ask my questions.
Are there not, or could there not be established world
courts in which these prisoners could be tried?
Mr. Johnson. I am sorry. Could you repeat that sir?
Mr. Bartlett. Are there not, or could there not be
established world courts in which these prisoners could be
tried?
Mr. Johnson. I would not rule out the possibility, sir.
Others have called for a national security form of court. I can
imagine circumstances under which it is plausible and
appropriate to prosecute suspected terrorists in an
international-type forum. We are trying to deal with the
current population right now and the issues we have----
Mr. Bartlett. I understand. I understand.
Mr. Johnson. And we have got a bill that came out of the
Senate that we think is a pretty good bill for a lot of
reasons. There are areas where we would invite this body to
consider amendments. But in theory I can imagine circumstances
where that might be appropriate, sir.
Mr. Bartlett. Thank you.
In many things that we do, there is an inherent tension
between national security and our international image, in the
perceptions of millions around the world, about who we are and
what we do. When I mention military tribunals to my
constituents, they have the inherent initial response that I
had when I first heard the word and we were going to do this,
and that is a ``banana republic,'' a trial at midnight and
execution at dawn.
When you were children, I am sure your mother told you what
my mother told me, and that is that you shouldn't borrow
trouble. I regret that we are where we are today, facing the
necessity of deciding how we try these criminals in either one
of these two courts. I would have wished that we could have
avoided--that obviously is a very dissentious and difficult
matter, or we wouldn't be here today. I wish we could have
avoided this by deciding at the very beginning that they should
have been tried in international courts. No matter what we do,
we run the risk of incurring considerable ill will around the
world.
Thank you very much for your attention to this, and I hope
you can help guide us through this with the least damage. Thank
you very much.
The Chairman. I certainly thank the gentleman.
Mr. Taylor and then we will break for the votes. Mr.
Taylor.
Mr. Taylor. Mr. Chairman, I am going to yield to one of our
resident JAG officers, Mr. Murphy.
Mr. Murphy of Pennsylvania. Thank you, Mr. Taylor and
thank you, Mr. Chairman. I appreciate it.
Mr. Johnson and Mr. Kris, thank you for your service to our
country. We appreciate it. There has been a lot of
conversations and discussions in this committee and the
Congress about our servicemen and women issuing Miranda
warnings to terrorists captured on the battlefield. And,
frankly, to hear some Members of Congress tell it, you would
think that every one of our service members have been turned
into police officers who are forced to worry about reading a
terrorist his rights rather than completing his mission and
keeping their fellow soldiers safe.
We all agree, we all agree that the job of our Nation's
military is to fight and win wars, not law enforcement or
evidence collection. And I am glad that you are here today
testifying before us, because I am hoping you could set the
record straight on this issue once and for all. I know when we
have spoken with General Petraeus, he is comfortable with what
his soldiers are doing in both Iraq and Afghanistan.
So let me be--I have a couple questions. One, how often are
suspected terrorists captured on the battlefield and
immediately read the Miranda warnings, and do these warnings
ever occur on the actual battlefield itself? So if you could
answer that, I would appreciate it.
Mr. Johnson. Congressman, thank you for that question. And
thank you for your service to our country. The Congress breeds
some really terrific JAG officers.
Mr. Murphy of Pennsylvania. Thank you, sir.
Mr. Johnson. I--In response to that question and concern, I
sent a letter to the Chairman, addressing this issue, and I
would just read the first two paragraphs of the letter:
``I write to correct a serious misimpression that has
arisen in recent weeks that the United States military may be
providing Miranda warnings to terrorist suspects in
Afghanistan. This is completely inaccurate.
``The record should be clear: The essential mission of our
Nation's military in times of armed conflict is to capture or
engage the enemy; it is not evidence collection or law
enforcement. Members of the U.S. military do not provide
Miranda warnings to those they capture.''
Now, let me go on to say that in instances where the
government chooses to go down the road of prosecution of a
suspected terrorist, that too is a member--a mission to enhance
national security, to bring to justice suspected terrorists.
That is part of ensuring national security. One is not an
alternative to the other. Thanks.
Mr. Murphy of Pennsylvania. Well, thank you, gentlemen.
And, Mr. Chairman, I know we have votes; so I will yield
back the remainder of my time. Thank you.
The Chairman. I thank you very, very much. For your
information, that letter was entered into the record during the
recent record on the resolution of inquiry that we took up this
past week. And if anyone on the committee wishes a copy of it
now, we will make sure the staff gets it to you.
Mr. Forbes. Mr. Chairman I would like to--Mr. Chairman----
The Chairman. We will--I tell you--to make it easy. We will
just make sure everybody on the committee gets a copy of that.
We will now recess until the end of the votes and,
gentlemen, we shall return. Thank you.
[Recess.]
The Chairman. The hearing will resume.
Before each member is the letter dated July 21, addressed
to me from the general counsel in the Department of Defense and
from the Office of the Attorney General.
[The information referred to can be found in the Appendix
on page 67.]
The Chairman. Mr. Akin.
Mr. Akin. Thank you, Mr. Chairman.
I am not a lawyer, and some of you have been getting into
some fine points here, but perhaps an engineer's perspective
may be the way some Americans are looking at this whole
situation.
I just want to review, generally, the facts. That is, in
January the President made a decision to close Gitmo. I assume
that is right. Is that true?
Mr. Johnson. Yes, sir.
Mr. Akin. And we have about 229 people in Gitmo, is that
right?
Mr. Johnson. That is also true.
Mr. Akin. And a good number of those are some bad hombres,
in the parlance.
Mr. Johnson. Thank you, sir.
Mr. Akin. I understand lawyers want to parse terms, but
these guys would kill American citizens if they got out and if
they were able to do so, a good number of them.
Mr. Johnson. I think we should assume that, yes, sir.
Mr. Akin. Okay. So then my question becomes, kind of, it
seems like getting more toward the bottom line.
First of all, does the Administration plan to release
detainees into the U.S.? I am not asking for a very lawyerly--
just either ``yes'' or ``no'' or ``maybe'' or ``I don't
know''--a fairly short answer. Are we going to release these
detainees into the U.S.?
Mr. Johnson. No.
Mr. Akin. No. Does the Administration plan to transfer
detainees into the U.S.?
Mr. Johnson. What we plan to do, consistent with the
national security interest and the safety of the American
people, is close Guantanamo, move them to another facility,
consistent with all of those interests.
Mr. Akin. Yeah, but that still didn't really answer the
question. Are we going to transfer the detainees to the U.S.?
Mr. Johnson. We are considering the possibility of a number
of alternative locations. Some may be transferred to other
countries. Some will be transferred to Department of Justice
custody for eventual prosecution. And some will be transferred
to another facility. Where that facility is I could not tell
you at this moment.
Mr. Akin. So it is not absolutely clear, but it is quite
possible that some of the detainees could be transferred to the
continental United States.
Mr. Johnson. It is possible that, consistent with the
safety of the American people and our national security
interests, we will move them to a location in the United
States. That is possible.
Mr. Akin. Okay. And would they be brought here if we were
going to do a trial here?
Mr. Johnson. Yes.
Mr. Akin. Okay. And that would be maybe one of the
conditions that would bring them here, if we are going to do a
trial, especially if it was going to be a civil-type trial,
right?
Mr. Johnson. Well, it has already been the case that some
detainees have been transferred to the United States for
criminal prosecution.
Mr. Akin. Okay.
Now, another piece of the equation seems to be that we
could increase the barrier in terms of making it harder to
figure out some other country to send them to if we become more
picky about the--some other country's foreign rights kind of
prac--I mean human rights kinds of practices. Is that correct?
Mr. Johnson. We do not transfer detainees, or anybody else
for that matter, to a country that we believe will torture
them.
Mr. Akin. Right. Now, is there any movement among some of
the different groups? I guess since the President made the
decision we are going to close Guantanamo Bay, six months has
elapsed. And so I guess people have been studying this whole
deal. I assume that is what you have been doing for the last--
--
Mr. Johnson. We have spent a lot of time studying this,
correct, sir.
Mr. Akin. Right. Okay. And, in the process of that study,
is there any recommendation that we raise the bar in terms of
where we could send these prisoners if they were going to go to
a foreign country, in terms of saying there maybe they don't
treat prisoners humanely enough or don't give them enough food
or have enough chocolate chip cookies or whatever it happens to
be?
Is there anything we are going to do which is going to make
it harder for us--or are you going to recommend is there
anything we are going to do to make it harder for us to
transfer prisoners to a foreign country?
Mr. Johnson. Well, another consideration in the equation,
sir, is assuring ourselves that the country to which we send a
detainee will provide adequate security conditions so that they
are not just released into the general population if we think
that that detainee is a security threat.
So even in a circumstance where the country says, ``Yeah, I
would love to have them back,'' we are not going to do that
unless we are satisfied that they are going to provide adequate
security conditions for accepting them back. That is part of
the equation. It is not just the consideration of, are you
going to torture that person?
Mr. Akin. Right. I guess there is two sides to the
equation. You just answered the other half of the question,
that there may be people that would not be able to detain them
and give them the proper security to make sure that they don't
get out.
The other question, though, is, are we going to limit the
number of countries we could send them to by increasing the
standards in terms--in another sense, in terms of their way
that they handle prisoners?
Mr. Johnson. I know what the current standard is, sir, and
that is what we are applying.
Mr. Akin. The current--but you are not advocating that we
are going to change that current standard.
Mr. Johnson. I don't know of any other standard that we
would consider utilizing at the moment, sir.
Mr. Akin. Okay.
Thank you, Mr. Chairman.
The Chairman. Thank the gentleman.
Dr. Snyder.
Dr. Snyder. Thank you, Mr. Chairman.
Thank you all for being here. And we very much value your
opinion on these issues and so many others.
When you all were discussing somewhat earlier the issue of
forums, which forum do you use, military commissions or the
Article III courts--just coincidentally, today's paper, the
Arkansas Democrat-Gazette, has a story about the case of
Abdulhakim Mujahid Muhammad, a name probably you all don't know
because he is not one of your detainees. He is the young man
from Tennessee that came to Little Rock and shot the two
soldiers, Private William Long, who died, and Private Quinton
Ezeagwula. They were in uniform, on duty, outside a Federal
recruit depot. They were targeted, in his words--he has been
making press statements--that because they were part of our war
in Afghanistan. He actually has traveled to, I think, Yemen. It
is not clear what all his background has been.
But he is going to be arraigned, not in a military
commission, not in a Federal court, in Pulaski County Circuit
Court, on a capital murder charge, amongst some other felonies.
So this--it brings home the complexity of these issues, because
we certainly, potentially, have other folks that will fall
under the jurisdiction of U.S. authorities other than from Iraq
and Afghanistan, including some people in our own country.
I wanted to ask specifically--and I asked this question the
other day, and didn't--and people didn't know what the answer
was. If a detainee in Guantanamo today were to kill another
detainee, what body of law would govern and what would happen
to that--I assume that there would be criminal charges brought,
one detainee killing--one human being killing another human
being. What body of law would be--would determine?
Mr. Kris. I mean, I think that, especially after the Rasul
decision, that Gitmo is within the special territorial and
maritime jurisdiction of the United States. So this is
something I should check to make sure I can give you an
authoritative answer, but I do think there would be Federal
jurisdiction in an Article III court over a crime committed
there.
Dr. Snyder. What I think is interesting about your answer--
and when we had the JAGs the other day, very nice guys, very
professional guys, they did not know. And what confuses me
about that, I mean, we have had Guantanamo there for several
years now. We hear stories that our guards are at great risk. I
assume that they have been hit. I mean, there is an opportunity
to bring felony charges and, I would think, convictions,
because we've got an evidence trail right there within the
confines.
I am curious why we haven't pursued any charges against
detainees if they actually have committed what we think were--
maybe I am wrong. Maybe it has all been patty-cakes down there,
but that is not the impression I have had.
Mr. Johnson. Well, in fairness to our T-JAGs--you ask a
very good question, so we----
Dr. Snyder. They said that very same thing.
Mr. Johnson. We had the benefit of advance notice of your
question. But I agree with Mr. Kris' assessment.
Dr. Snyder. But the reason I reacted to your answer, you
``thought'' it would be, which tells me you have not prosecut--
that there have been no prosecutions for actions committed by
detainees while on Guantanamo during their time.
And my only point is, if you have got somebody you are
trying to lock up somewhere or deal with in a definitive way
and you don't have evidence for exactly what they did, a harder
case to prove whether it was in Afghanistan or Iraq or in the
United States or wherever it was, but then they actually do
something that you can potentially convict and lock them up for
20 years, I would think that there would have been things that
would have occurred that, yes, we can convict this person on
this charge.
But--so, I don't know. I wondered if it is because people
are afraid to actually bring some kind of charge, that it might
say, well, they would fall under this court or these laws. But
do you have any idea why that hasn't occurred?
Mr. Johnson. As I sit here now, I can't tell you for
certain that there haven't been prosecutions. I know that there
are a number of disciplinary-like measures that are taken for
misbehavior, misconduct, so forth.
Dr. Snyder. Yeah. I mean--it may be this is a very well-run
facility and people are not--don't have the opportunity to do
some really bad things. I wanted to--if you have any additional
information about that, I would be interested.
My last question I think you have touched on, but the
mention in Mr. Akin's question about whether folks would come
up here. I assume people come up to the United States, or have
or potentially could, for medical reasons, that Guantanamo may
not have the kind of--you know, if you have really--need a
tertiary center or something.
I am sorry. Time is up, apparently.
The Chairman. Thank the gentleman.
Mr. Forbes from Virginia.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Johnson, Mr. Kris, first of all, let me thank you for
being here, for all of your service. You are good guys. And
forgive me for having to talk quick and ask for you to be
concise in your questions, but I only have five minutes.
I was with the group that went down to Guantanamo on
Monday. We did meet with your chief prosecutor, Mr. Johnson. He
is under your jurisdiction, I would take it. Is that correct?
Under your department?
Mr. Johnson. The Office of General Counsel has supervisory
authority over the OMC.
Mr. Forbes. You are familiar with Mr. Murphy and his
competence. And I take it, he is the best guy we have to be in
that chief prosecutor position or he wouldn't be there?
Mr. Johnson. He is an experienced, professional prosecutor,
yes, sir.
Mr. Forbes. I want to narrow in on the 9/11 defendants.
Because we talk about detainees; sometimes we don't have faces
with names. But as to the 9/11 defendants who are detainees
there who are undergoing this prosecution, it has been a
referral, that is being prosecuted, or was being prosecuted.
The chief prosecutor said his goal was to get justice for
the victims of terror and for the citizens of the United
States. Is that a fair and just goal?
Mr. Johnson. That is a fair and just goal for the United
States Government, yes, sir.
Mr. Forbes. Is that the goal of this Administration?
Mr. Johnson. Yes, sir.
Mr. Forbes. If that is the case and that is a standard,
should that standard be changed simply because someone has a
perception that that standard is wrong?
Mr. Johnson. I don't believe so.
Mr. Forbes. In that particular case, then, I want to go to
the
9/11 attacks and the prosecution that is undergoing there. Are
you aware of the number of pleadings and motions that have
already been resolved in that one proceeding alone?
Mr. Johnson. I know that, in that case and in several other
of the pending cases, we have as many as perhaps a hundred
pretrial motions that have been resolved, yes, sir.
Mr. Forbes. In that particular case--and, Mr. Chairman, I
would ask that this be submitted as part of the record. It is
from the Department of Defense, listing 56 motions that have
already been resolved in that one proceeding.
The Chairman. Without objection.
[The information referred to can be found in the Appendix
on page 70.]
Mr. Forbes. And, of those 56, Mr. Murphy told us when we
were down there on Monday, the Executive order the President
signed didn't just talk about a review, as you mentioned
earlier, but it actually stayed the proceedings for the
military tribunals going on. Is that correct?
Mr. Johnson. Yes, sir.
Mr. Forbes. And, on that, the chief prosecutor told us that
that is now necessitating that he go in and ask for a
continuance on September 11th, which he said is far from
certain that he will be granted. Are you familiar with the fact
that he is going to have to do that in that proceeding?
Mr. Johnson. The continuances have, in fact, been granted
in the 9/11 case.
Mr. Forbes. And are you familiar with the fact that he has
to ask for one on September 11th because he can't go forward
with this trial now, with this tribunal?
Mr. Johnson. It is currently stayed.
Mr. Forbes. And he also, then, told us that there is a very
good chance that the judge, since he has already asked for
continuances, as you mentioned, had--may not grant that
continuance. And if the judge doesn't grant that continuance,
he has said that he will have to dismiss the charges against
the defendants because he can't move forward based on this
Executive order.
Are you familiar with that?
Mr. Johnson. I agree that continuances are up to the
discretion of the trial judge.
Mr. Forbes. Would you also agree that, if he can't get that
continuance, that he can't move forward with the commission and
he will have to dismiss those charges?
Mr. Johnson. Yes.
Mr. Forbes. And if he has to dismiss those charges, why in
the world would the Administration put him in a position to
risk dismissing the charges against the 9/11 defendants?
Mr. Johnson. Well, if--even though the case has been
suspended, those particular individuals--and I hesitate
commenting on a particular case--but it is the fact that those
particular individuals remain detainees at Guantanamo. And
irrespective of what happens in the case, they are subject to
law of war detention.
Mr. Forbes. Well, then, Mr. Johnson, why in the world are
we having these proceedings if we are going to retain them
whether we have the proceedings or not depending on--and it
doesn't matter what the outcome of the proceedings are?
Mr. Johnson. Because on--in certain contexts, people who
violate the laws of war or violate Federal criminal laws should
be brought to justice. The public, I think, expects that.
Mr. Forbes. Did the--Did the defend--Is it your opinion,
your personal opinion that the individuals, the defendants in
the 9/11 attacks violated were acts of war, or were they
violations of criminal law?
Mr. Johnson. I cannot comment on a particular case. I don't
think it would be prudent for me to do that, given my position
in the Department, sir.
Mr. Forbes. Mr. Kris, can you say whether or not, in your
personal opinion, that the acts that took place on 9/11 were
violations of war--acts of war or were they violations of
criminal law?
Mr. Kris. I am not going to testify in my personal opinion.
But I think it is fair to say that they are both.
Mr. Forbes. Mr. Kris, you are not prepared to give us your
personal opinion when you came here? Every other witness--well,
I am out of time. I will hopefully come back. But I want to
just prep you all for when I do get some more time. We have
been asking all of our witnesses their personal opinions when
they come in here. That is what we look to you for.
Mr. Chairman, my time is out.
Mr. Kris. Congressman, I beg your pardon. I just want to
make clear, I am testifying as an Administration witness. I
know some of the military officials can testify in their
personal capacity and give their personal opinions.
But I will say that I think the 9/11 attacks are both
violations of the law of war and of the criminal laws of the
United States.
Mr. Forbes. Thank you both.
The Chairman. Mr. Kris, you understand the difference
between a case being dismissed with prejudice or dismissed
without prejudice? Do you understand the difference?
Mr. Kris. I do, yes.
The Chairman. If it is dismissed without prejudice, it may
be refiled. Am I correct?
Mr. Kris. Yes.
The Chairman. If it is dismissed with prejudice, that
person may not be tried under the same charge. Is that correct?
Mr. Kris. That would normally be true, yes.
Mr. Forbes. Mr. Chairman.
The Chairman. Yes.
Mr. Forbes. Would the gentleman yield?
The Chairman. Yes.
Mr. Forbes. Based on that line of questioning, I would just
like to put in the record that the chief prosecutor would agree
that there might be a possibility that he can refile this. But
the problem would be that--and I think Mr. Larsen and Mr.
McKeon would agree--that he said that it could take another 18
months just to get where they are right now because of all
these proceedings, because they would have to start from
scratch, and also that it could be that the speedy trial laws
would actually prohibit him from bringing a case again. All of
that is up in the air.
And I just yield back and thank the gentleman.
The Chairman. Well, I thank the gentleman. But my question
is, these particular cases, were they dismissed without
prejudice or with prejudice?
Mr. Kris. I mean, I don't know what the judges will do. I
hope they won't dismiss at all.
The Chairman. No, no. Have they already been dismissed?
Mr. Kris. No.
Mr. Johnson. Under military commissions procedure, when a
case is withdrawn, as a few have been in the past, they are
withdrawn without prejudice.
The Chairman. Is that part of the rules and regulations
under which the commission operates?
Mr. Johnson. Yes, sir.
Mr. Kris. I might just make, sort of, three quick points
that may help on this, maybe not.
But the first is that the protocol considers efficiency,
which would embrace, I think, prior litigation in guiding forum
choice.
The second is that I think the President has made clear we
are not going to go forward with a Military Commissions Act
proceeding until the necessary reforms have been made to the
military commissions system in any event.
And, third, that the pending legislation, I think, as it
stands today, has a, sort of, conforming amendment approach
that allows for the possibility of continuing the cases that
are pending even after the amendments have been enacted into
law.
The Chairman. Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman.
I have consistently supported the use of military
commissions in appropriate cases. And I was one of the first
ones to introduce in 2005 a military commissions bill.
Nonetheless, I voted against the MCA [Military Commissions Act]
of 2006 because I had some certain concerns with it. And I am
glad that, in looking over your review, that your revisions and
suggestions, that you have actually gone to some of those
concerns. So I want to thank you.
However, I am surprised you didn't include a revision of
the definition of ``unlawful enemy combatant,'' which I think
currently is ``any person who has engaged in hostilities or who
has purposefully and materially supported hostilities against
the U.S. or its co-belligerents.''
I think that the intent of military commissions is to
police the battlefield. And I believe that military commissions
are intended to enable--I believe that there should be clear
boundaries for the use of these special wartime commissions to
prevent them from more general use in normal law enforcement
cases.
Cases involving noncombatants should be disposed of through
Article III courts. I believe this would be accomplished by
restricting the jurisdiction of military commissions and the
definition of ``unlawful enemy combatants'' to persons who
actually engage in armed hostilities or attempt, conspire, or
aid and abet the same. This definition draws the line more
strictly around those who participate in acts of violence under
the well-defined traditional headings of principals, attempts,
and conspiracy.
And, for example, some of the examples I might use is that,
under the MCA, the personal jurisdiction of the military
commissions are limited to unlawful enemy combatants. I am
concerned that defined categories broadly include persons, for
example, who are captured off of the battlefield for various
noncombatant support or, like, monetary contributions to
terrorist organizations, for example.
So my question to you is, have you given thought on whether
you would define the--how you would define the personal
jurisdiction of military commissions? And, if so, how? And how
would you change the definition of ``unlawful enemy
combatants,'' if you would?
Mr. Johnson. Congresswoman, first thing I would do is refer
to the Senate bill, which I think no longer uses the phrase
``unlawful enemy combatant'' in defining jurisdiction. And I
think the phrase used in that bill is ``unprivileged enemy
belligerent,'' which is a phrase that many military law experts
use and embrace.
In response more broadly to your question, I would refer
you to the definition that we are now using with the Department
of Justice in our Guantanamo habeas litigation for who we say
we have the authority to detain. That was a definition that was
modified in March from the previous Administration's
definition.
In that definition, we no longer use the phrase ``unlawful
enemy combatant.'' And it is a definition that is more closely
tied to the Authorization for the Use of Military Force that
the Congress passed in 2001, as informed by the laws of war.
So that is the definition we are using as our detention
authority for the people at Guantanamo. And who we prosecute in
that group is a subset of that group that we think we have the
authority to detain.
Ms. Sanchez. But the Congress has not changed the
definition.
Mr. Johnson. No, no. We, the executive branch----
Ms. Sanchez. You are.
Mr. Johnson [continuing]. Changed the definition in our
submission to the courts for who we say we have the authority
to hold.
Mr. McKeon. Will the gentlelady yield?
Ms. Sanchez. I will yield to you, Mr. McKeon.
Mr. McKeon. In the Senate bill that they passed last night,
they used this definition, ``unprivileged enemy belligerents.''
So the Senate is using that.
Ms. Sanchez. Yeah, but we aren't. I mean, the current law
isn't.
Mr. McKeon. No, we didn't address it in our bill. It is
something we will have to address in conference.
Ms. Sanchez. Right.
Mr. Kris. The Military Commissions Act and the Senate Armed
Services bill to which Representative McKeon just referred have
this definition. They use different terms to describe it.
But, as Mr. Johnson said, there is the possibility of
linking the personal jurisdiction more explicitly to the
authorization to use military force from September 2001. That
is still, I think, an open question, and we are very interested
in working with Congress on that.
One other point that may help address the basic point you
were advancing, I think, Congresswoman Sanchez, and that is
that, whatever personal jurisdiction issues are--exist,
military commissions will be limited in terms of their subject
matter jurisdiction to law of war violations. So an ordinary
Federal crime would be, I think, outside the scope of what
could be tried there, regardless of personal jurisdiction
issues.
So I just wanted to add that limiting gating factor that I
think is an important part of how you look at this.
Ms. Sanchez. Thank you, gentlemen.
Thank you, Mr. Chairman.
The Chairman. Thank you.
The gentleman from Texas, Mr. Conaway.
Mr. Conaway. Thank you, Mr. Chairman. I appreciate it.
Gentlemen, thank you for being here.
Hearing the phrase, ``unprivileged enemy belligerent,''
took me back to my B law days when bank robbers were described
as ``holders not in due course.'' Not relevant to what I want
to ask.
We are in an ongoing fight. And with respect to new folks,
folks who aren't yet at Guantanamo Bay or aren't going to go
there, does the Administration plan to use a preventive
detention system for terrorist detainees in the future?
Mr. Johnson. It is difficult to predict the future. We
believe that the Congress authorized law of war detention for
these particular detainees at Guantanamo. That is the
definition we are now using. And the courts have reaffirmed
that principle as recently as 2004.
Mr. Conaway. Okay. But if we picked up a guy on the
battlefield today that is clearly an al Qaeda or related--an
affiliate of al Qaeda, does the Administration believe you have
got the authority to preventatively detain that new combatant,
or unprivileged enemy belligerent--a guy with a bad attitude, I
guess--under the rules? And, if so, where do you plan to keep
these guys, or women, depending on who you pick up?
Mr. Johnson. If that detainee fits within what Congress
adopted in 2001--I think the language was al Qaeda, Taliban--
and they are at Gitmo, we certainly believe that we have the
authority to detain that person. Part of our review process----
Mr. Conaway. Okay, let's focus on the new guys that aren't
at Gitmo and, if you have your way of closing it, won't go to
Gitmo. Where are you going to keep those folks?
And let's broaden the question a little bit, to if we
picked them up in Yemen, some other place in the world besides
Afghanistan. What is the Administration's position with respect
to those bad guys?
Mr. Johnson. We--If they are a member of al Qaeda, they
constitute a security threat, we would certainly look to detain
them, after we capture them, someplace. Where exactly that is,
I would hesitate to try to speculate right here.
Mr. Conaway. Okay. Are there plans within the
Administration to determine where that place might be?
Mr. Johnson. Yes, sir.
Mr. Conaway. And who would be--who would we need to bring
down here to talk about that?
Mr. Johnson. I can try to help you identify that person
somewhere within the Department of Defense.
Mr. Conaway. Okay. So you are not just--I am always nervous
when I am----
Mr. Johnson. A lawyer doesn't always have all the answers.
Mr. Conaway. Well, lawyers parse their words very easily.
You mentioned earlier about, if we prevail in the habeas
cases, that we will keep these guys forever. What if we don't
prevail?
Mr. Johnson. As the President said in May, if we have the
detention authority, there should also be some form of periodic
review----
Mr. Conaway. But wait a minute.
Mr. Johnson [continuing]. So you don't just keep them
forever.
Mr. Conaway. Okay, well, do you or don't you have the
detention authority?
Mr. Johnson. We believe we have the detention authority
with respect to the current population. There comes a time--and
I think the Supreme Court may have alluded to this--that, if
circumstances change and the person is just sitting there year
after year after year, we may lose that authority, and so some
form of periodic review might be appropriate.
Mr. Conaway. Because the fight is over, or because this
person is infirm?
Mr. Johnson. Because the fight is over and/or the person is
no longer a threat.
Mr. Conaway. Okay. If the fight is over, then we couldn't
hold any of them, under that preventive detention measure,
right? And how are we going to know when the fight is over?
Mr. Johnson. Well--under the traditional law of war
principle, you hold them until the cessation of hostilities,
until the war is over.
Mr. Conaway. Right.
Mr. Johnson. And this obviously is a different kind of war.
So we think some form of periodic review is appropriate that
makes a threat assessment.
Mr. Conaway. Sure.
Mr. Kris, are you--what kind of assurances--once you hear
the question, you will say none--but what kind of assurances
can you give us that some Federal judge in the system somewhere
won't decide that, because this fight is, as Mr. Johnson just
said, not one we have fought before, and the idea of cessation
of hostilities is so nebulous that it no longer applies and
that we have to let these guys go? Can we trust that these
Article III courts won't come to that conclusion?
Mr. Kris. Well, at one level, you are right: I obviously
cannot control Article III judges. I admitted earlier I can't
control the media, and I am happy to make a similar admission
here.
But I do have a good deal of faith in our Federal judicial
system and the judges who are on it. And, of course, if any one
judge makes an error--and that can happen--we have appellate
review.
Mr. Conaway. The Judiciary Committee, earlier this week,
heard some gut-wrenching testimony about a poor soul who was a
nerdly, scientist geek who was trying to develop a fuel cell,
and he wanted to move from his mother's basement to Alaska. And
he knew that these chemicals couldn't--that he was using
couldn't be flown to Alaska, so he gives them to a UPS guy,
clearly marks ``Ground'' on the shipping document, not knowing,
of course, that UPS flies everything up there. So he flew
something up there unintentionally.
We arrest him, put him in jail. While he is in jail, the
chemicals that the other--the other chemicals he has had, the
EPA decides that he has abandoned those chemicals. The
abandonment occurred while he is in jail, in our custody. This
pour soul does 17 months on the EPA charge in one of your
Article III courts.
And so, your--you know--and that is an unfair accusation to
try to characterize the entire system, because the entire
system is good. But there are rogue events, anecdotal events,
that cause me great concern when we have got a prosecutor on
one side and a judge on the other side who couldn't look at the
facts there and go, ``Goodness gracious, this is nuts.''
So can you give me great confidence that this--it is even
more important in this arena that we don't let these guys go.
Mr. Kris. I mean, I think--I am obviously not familiar with
that case, as you know.
Mr. Conaway. I know.
Mr. Kris. I mean, I think the lesson of that is, I guess,
that, even in a system like Article III, where you have the
largest number of checks and balances and unquestioned systemic
legitimacy, mistakes are possible. This is a human endeavor.
Mr. Conaway. Yeah.
If we tried KSM, Khalid Sheikh Mohammed, and he is
acquitted, worst of all circumstances, he is acquitted, can we
still hold him, Mr. Johnson? Or will we still hold him, is a
better question.
Mr. Johnson. Well, I hesitate to give you a prediction
based on particular circumstances.
Mr. Conaway. So there is a chance we wouldn't hold this
guy?
Mr. Johnson. I said earlier in response to another question
that it is my view that, if you have detention authority, law
of war authority to hold a dangerous person, that is true
irrespective of what happens in a prosecution.
Mr. Conaway. All right, that is fair. Thank you.
I yield back.
The Chairman. Mr. Larsen, the gentleman from Washington.
Mr. Larsen. Thank you, Mr. Chairman.
And, gentlemen, thank you for coming.
I was one of the four Members who were down there on Monday
at Guantanamo. I was there in January 2002, as well, and got
to, sort of, see the bookends of the physical facilities. And I
have to say that the facilities down there are certainly much
improved over what we saw in January of 2002.
And to echo Mr. Johnson's comments about the
professionalism of the folks down there, I want to echo that.
It is really always a sight to behold whenever we get to travel
overseas and visit our men and women in the military and see
the jobs they do. They are doing a great job under difficult
circumstances.
With regards to the Office of Military Commissions
prosecutor conversation that we had down there, I think he did
make his own forceful case for military commissions. I wouldn't
expect anything otherwise. And he provided some conjecture
about what might happen because the hearings process has been
stayed.
But, I guess, what may be may not be, as well. And, you
know, it is tough to say that his prediction would come true or
not, in part because we didn't have the opportunity to have the
same kinds of discussion with the Office of Military
Commissions-Defense [OMCD]. And so I made the point that maybe
we ought to have a chance to chat with the OMCD folks, as well,
and look forward to how they see the process and what kinds of
concerns that they have. Because I think that we need to hear
both sides in order to have a better discussion and more
informed discussion as we move forward.
With regards to the MCA and the Senate--of course, we
didn't have language in the House version, and we will have to
sort things out now that the Senate has passed.
But, Mr. Johnson, could you discuss the Administration's
position on this debate about voluntary versus reliability
standards in the use of evidence and why the Administration is
where it is on this issue?
Mr. Johnson. The Administration believes that a
voluntariness standard is the right way to go. And we believe
that for this reason: The current law and the current bill have
a totality of circumstances reliability standard. We think
that, as these prosecutions progress, more judges will likely
impose a voluntariness requirement, and we think, therefore, it
is important that they get it right.
And so, what we in the Administration are advocating is a
voluntariness standard--and there is language we can give you
specifically--tailored to military operations, military
intelligence collection circumstances, so that, consistent with
the law, the judges get this right.
We are not talking about imposing a voluntariness standard
on soldiers at the point of capture. I want to be perfectly
clear about that. And one of the things the Senate bill does is
specifically exempt from military commissions any Miranda
requirements, Article 31 of the UCMJ.
What we are talking about is a voluntariness standard,
frankly, that is not far from what Admiral McDonald advocated
the other week when he was here. I think the JAGs advocated
that voluntariness be a factor in the reliability standard.
Mr. Larsen. They basically argued reliability with
voluntariness as a factor.
Mr. Johnson. Correct.
Mr. Larsen. And it sounds like you are arguing
voluntariness with reliability as a factor, in some sense.
Mr. Johnson. We are arguing that voluntariness should be
the standard. But, really, what we are saying is not that
different than what the uniformed lawyers are saying. We are
urging a voluntariness standard that takes account of the
circumstances of how the military does its job.
Mr. Larsen. Well, as I understand your argument, it gets at
some of the heart of the MCA. What I hear you saying, I guess,
is you are trying to perhaps anticipate what a future trial
judge or a series of future trial judges may determine about
the use of the reliability standard versus the voluntariness
standard and, by anticipating they may be moving to the
voluntariness standard, put it in the MCA now so we don't have
to go back and change it later.
Which has been one of the problems that we have had, I
think, in the past with the MCA in getting it wrong and being
told by judges to go back and fix what was wrong, which is why
we are here today.
Mr. Johnson. I want to echo what the chairman said, which
is that it is important that we have a process that is
sustainable, that brings convictions that can be upheld on
appeal.
Mr. Larsen. And, quickly, the yellow light is on, I will
ask a question, material support of terrorism. The
Administration--Where does the Administration sit on material
support of terrorism as a chargeable offense in the MCA? Are
they supportive of it or not? And why?
Mr. Johnson. We think Article III prosecutions are for
violations of the Federal criminal law and that military
commissions are for violation of the laws of war.
We looked at it carefully and concluded that the historical
precedent for material support as a law of war offense was
questionable. And, therefore, material support should be
prosecuted, if it is prosecuted, in Article III Federal courts.
Mr. Larsen. Thank you.
The Chairman. Thank the gentleman.
Mr. Coffman from Colorado.
Mr. Coffman. Thank you, Mr. Chairman.
There seems to be a shift in this Administration to view
what I would call acts of war as criminal justice issues, where
the global war on terror is now ``overseas contingency
operations,'' and terrorist attacks are now ``man-caused
disasters.''
But we are a Nation at war, and we are fighting against
disparate, irregular forces bound by an ideology who often use
terrorism as a tactic. All enemy combatants should be detained
until this war is over with, regardless of how long it takes
for us to win this war.
Only if there are alleged violations of war should these
enemy combatants go through--be tried through a judicial
process. But even if they are found innocent of that, they are
still enemy combatants and should be detained, again, for
however long it takes us to win this war.
And I would like to know, is this the Administration's
view, that acts of war are criminal justice issues?
Mr. Kris. Congressman, I think a couple of points on that.
First, the President has made clear, and I want to echo it:
We are at war. We need to win that war. We need to defeat our
adversaries.
To do that, we need to use all of the tools in our toolbox,
all elements of national power consistent with the rule of law.
That includes military techniques, intelligence techniques,
diplomatic techniques, and anything else that is consistent
with the rule of law and that will help us win.
And it includes also military justice, prosecutions in
military commissions, and, where it is appropriate and
effective, prosecutions before Article III courts.
I want and I think the Administration wants to be able to
use whatever tool is the most effective under the circumstances
to allow us to win.
Mr. Coffman. But you do not believe that enemy combatants
should be detained until this war is won.
Mr. Kris. No, on the contrary, I think the Supreme Court
has made clear that, under the authorization to use military
force, there is authority to detain. And we are, in fact,
detaining many people under that theory now. It is being tested
in habeas corpus proceedings, but we are certainly doing it.
At some point, the Supreme Court may----
Mr. Coffman. Excuse me, but I think you missed my point.
And my point is this, that there are two levels. I was an
infantry officer; I wasn't a JAG officer. And I faced--I have
been face to face with the enemy. And I will tell you this,
that--a couple points. Number one, we are a Nation at war. And
so the question is, enemy combatants ought to be detained so
long as we are a Nation at war. And the other issue is, when
there are violations of war, of the laws of land warfare, then
no doubt those people should be tried.
But I think we have this fuzzy-headed view that, when
somebody is plucked off the battlefield, that they need to go
through some judicial process to determine whether or not they
should be detained. And I think that--and you say it is the
policy that they can. The question is, we should have an
absolute policy that people that are enemy combatants will be
detained until this war is over with.
Mr. Johnson. Congressman, the President agrees with you. We
are at war. He said that as recently as May 21st.
Given the nature of the conflict, there is not going to be
a surrender. There is not going to be a fixed date for a
surrender, which is why it is appropriate for those we are
detaining under our law of war authority to have some form of
periodic review. Because there may be a point in the future
where that person is deemed no longer a threat.
Mr. Coffman. If--the person--Well, we have released people
who we thought were no longer a threat that are back on the
battlefield. So our ability to decipher that isn't very good.
You know, again, I think that this view--that there is a
view that this is all a criminal justice issue, that acts of
terrorism are law enforcement problems. And, as somebody who
served in Iraq in 2005, 2006, I want to tell you for the troops
on the ground there is a different reality than exists then for
this Administration.
Mr. Chairman, I yield back the balance of my time.
The Chairman. Thank the gentleman.
Before I call on Mr. Courtney, Mr. Kris, when does the war
end?
Mr. Kris. Oh, I am sorry, I, as Mr. Johnson said, that is
very difficult to predict. This is a war unlike other past
wars. And I think, as he said earlier----
The Chairman. We know that. But when, in your legal
opinion, when does the war end?
Mr. Kris. I don't know if that is so much a legal judgment
as it is a factual and military judgment as to when the war
ends. When the adversary is defeated, that would be one ending
point. I mean, if you are getting at--and I don't----
The Chairman. Why don't you do this for me? Answer that for
the record. Go back and think about it and send us an answer.
When does the war end? Because, at that moment, those
detainees, as bad as they are, under the law of war, would be
freed.
Mr. Kris. I agree with you.
The Chairman. Am I correct?
Mr. Kris. Yes, I think that----
The Chairman. So I think it would be helpful to our
committee if you would do some research and send us an answer
to the question, for the record, when the war ends. Under what
circumstances does the war end? And spell it out for us. You
are a good lawyer; you can do it.
[The information referred to can be found in the Appendix
on page 77.]
The Chairman. Mr. Courtney.
Mr. Courtney. Thank you, Mr. Chairman.
Mr. Chairman, listening to some of the questions, it seems
like there has almost been an assumption that this
Administration walked into office with a static population at
Guantanamo Bay and that we are, sort of, moving from that
number of 240 which existed back in January to where we are
today. I mean, the fact of the matter is that there were over
700 people that were detained at Guantanamo Bay. Isn't that
correct, Mr. Johnson?
Mr. Johnson. Yes.
Mr. Courtney. And so when President Obama took office and
there were only 240 in that facility, my math tells me that
about 540 people have been transferred or released, whatever
term you want to use, before he even stepped foot into the
White House. Isn't that correct?
Mr. Johnson. That is correct, yes.
Mr. Courtney. So there obviously has been a process that
started with the prior Administration of using national
security as the measuring stick for evaluating the decision to
hold people or to transfer them back to other countries. I
mean, that is an obvious conclusion that you have to deduce
from just the math. Isn't that right?
Mr. Johnson. Correct.
Mr. Courtney. So--and when the President clearly stated
that, after, sort of, going through this remaining minority of
detainees that are at Guantanamo Bay and sorting through who is
going to go to military commissions and who is going to go to
Article III courts, that--and he was very up front about the
fact that there may be this other category who don't
necessarily easily fit into those referrals--that the
Administration's position is that we have the right to hold
them under the law of war. Isn't that correct?
Mr. Johnson. Yes. And I think the President has also made
clear that the safety of the American people, consistent with
the rule of law, is the paramount concern.
Mr. Courtney. So, you know, there really is no fuzziness
here about what the Administration's position is, in terms of
protecting this country and using a non, you know, sort of,
criminal police measuring stick, in terms of what the
Administration's policy is. I mean, he is basing that detention
law--legal opinion on the 2001 authorization which this
Congress enacted. Isn't that correct?
Mr. Johnson. Yes, sir.
Mr. Courtney. So when the Senate did their modification of
the commissions in the authorization bill, did they touch that
piece of the system? Or is the Administration still just going
to ask for us to leave that alone?
Mr. Johnson. The Senate amendment to the Military
Commissions Act does not purport to address law of war
detention; that is correct. And we believe, with respect to the
current Guantanamo population, that the Authorization for the
Use of Military Force, as it was interpreted by the Supreme
Court in the Hamdi decision, provides sufficient authority to
detain the current population.
Mr. Courtney. So nobody is going anywhere who, again, in
the opinion of our military and Administration officials
believes still poses a threat, whether they are found guilty
either by plea or trial of an offense in the military
commission or Article III court because of that policy. Isn't
that correct?
Mr. Johnson. That is correct. That is our primary
obligation to the American people.
Mr. Courtney. Okay.
And, lastly, just, you know, Mr. Kris, how many people in
the Department of Justice do we incarcerate on a given day,
roughly?
Mr. Kris. I mean, the Bureau of Prisons has a very large
population--I think it is a hundred thousand or so--under lock
and key right now.
Mr. Courtney. And, I mean, just in my State of Connecticut,
I mean, there are probably roughly about 20,000 people
incarcerated on a given day. Obviously, we have a system that
can accommodate 240 people, individuals, in a safe and secure
manner. And we prove that every single day, in terms of the
hard work that people in the Bureau of Corrections do. Isn't
that correct?
Mr. Kris. I think that is absolutely right.
Mr. Courtney. Okay. I yield back.
The Chairman. Ms. Fallin, the gentlelady from Oklahoma.
Ms. Fallin. Thank you, Mr. Chairman.
And I appreciate you gentlemen and your testimony today
and--about how we treat our enemy combatants, especially on the
battlefield. But I have a little bit of a different tack that I
would like to ask you about today, because this deals with a
situation that is occurring in my home state, in Oklahoma, and
it deals with our American soldiers and how they are treated on
the battlefield and their rights in the military court system.
And since both of you are with the legal system, I would
just like to tell you about a situation, ask your opinion, and
then hopefully leave you with some information and ask you
specifically if you will look into this situation for me as a
Member of Congress.
And let me just start out, I heard Mr. Forbes asking Mr.
Johnson about the goals of the Administration in relation to
detainees and their rights. And I think you said that the
Administration's goal is justice for the victim and--of terror
and also for the U.S. citizens. In other words, there should be
justice for all when we talk about our military courts.
And I guess my question is, do you believe American
soldiers have a constitutional right to a fair trial?
Mr. Johnson. I believe that, under the UCMJ, American
soldiers, sailors, airmen have a number of rights to a fair
trial.
Ms. Fallin. Thank you. And doesn't an American soldier have
the right to defend themselves in a combat zone against, say,
if they were to run up an against a member of al Qaeda that is
a terrorist and a known terrorist? Do they have the right to
defend themselves?
Mr. Johnson. Absolutely.
Ms. Fallin. Okay. And during a military trial, is it
permissible for a prosecutor, a government prosecutor, to
withhold or fail to provide exculpatory evidence to the defense
of an American soldier?
Mr. Johnson. Well, first of all, as a former prosecutor
myself, I hesitate to comment on what somebody did in a
particular trial or a decision made in a particular
prosecution. And so, I wouldn't want my comment to be
interpreted as that.
Ms. Fallin. Okay. Well, I am asking----
Mr. Johnson. I know that, as a general matter----
Ms. Fallin. Yeah, in general.
Mr. Johnson [continuing]. Prosecutors, the government has
an obligation to disclose exculpatory evidence.
Ms. Fallin. Okay, good. That confirms that.
Okay. So, in your professional opinion, would an American
citizen, a soldier, be given a fair trial if evidence is
withheld purposely from the defense that is exculpatory?
Mr. Johnson. As a general matter--again, I am not
commenting on a particular case--as a general matter,
prosecutors have an obligation to disclose exculpatory
evidence. And, if they don't, there should be consequences.
Ms. Fallin. Good.
Okay. So that gets me to a point, and that is that we have
had a gentleman from my home state--and I am not determining
guilt or non-guilt on this situation. But what I do want to
make sure is that, when our American soldiers who are away from
our country, defending our Nation, and on foreign soil who run
across enemy combatants that are in that land, that they have
full rights, too, as American citizens, because they are, of
course, taking away time from their country and their life and
defending our country. And we need to make sure that we protect
them just as much as we give rights to detainees or enemy
combatants.
And, in a particular case, there has been a gentleman that
is First Lieutenant Michael Behenna, who has gone to trial, has
had a trial, but there have been very deep concerns from my
congressional delegation in Oklahoma and from others who
believe that evidence was withheld from the defense of him. And
he was accused of shooting an al Qaeda member who had just
killed two of his fellow soldiers in his platoon through an
explosive device.
And so, there is some question about whether the trial was
fair, because not all evidence was presented in court. So we
have asked for the convening authority to look at the evidence
and to make a ruling. And, just yesterday, they made a ruling
that they felt the trial was fair.
So I guess what I am asking is, I want to give you this
information and just ask that you would take it back, because
my goal is just to make sure that our American soldiers have
every single right that they deserve to have a fair trial, just
as much as an enemy detainee.
Mr. Johnson. Congresswoman, now that you mention the case,
I am aware of the case. The Secretary of Defense has received
correspondence about the case. Because the case is in the UCMJ
process, I am limited in terms of what I can do or what the
Secretary can do to try to influence that, nor should we try to
do that. But I am happy to look at whatever you ask me to do.
Ms. Fallin. And all I am asking you is to look at the
process, not the outcome.
Thank you.
The Chairman. I thank the gentlelady.
Ms. Davis.
Mrs. Davis. Thank you, Mr. Chairman.
Thank you both for being here.
I wanted to go back to one of our HASC [House Armed
Services Committee] hearings in September of 2006, when Admiral
McDonald, the Judge Advocate General for the Navy, discussed
the issue of reciprocity. And the question was whether the way
in which the U.S. treats detainees impacts the way our service
members will be treated on the battlefield, something I know
you are very familiar with.
And, at that time, he said that, ``I would be very
concerned about other nations looking in on the U.S. and making
a determination that, if it is good enough for the U.S., it is
good enough for us, and perhaps doing a lot of damage and harm
internationally.'' Now, that was a time that we, obviously,
were very concerned about what was happening and the impacts.
Could you--do you share his views on that, that it really
does make a difference to our troops in the field how we handle
this process in the U.S. and overseas?
Mr. Johnson. I hear repeatedly from my military lawyer
colleagues that reciprocity is important, that we are concerned
about how our people would be treated if they were captured.
And it is important, therefore, to get it right for that
reason.
Mrs. Davis. Do you have a comment?
Mr. Kris. I will say I agree. Jeh and I and Admiral
McDonald testified together a few weeks ago in the Senate, and
he expressed the same view there, which I found persuasive. And
he said, and I think he is right, that the legislation that we
are working on satisfies that reciprocity principle. And I
think it is an important one.
Mrs. Davis. Uh-huh. Are there any changes that the Senate
has made or in our discussions that would cause you any concern
in those areas? And are some of those issues very differently
portrayed in the outside world aside from here? Have you seen
that in any way, that they are being portrayed differently than
the way you see them?
Mr. Johnson. Well, this goes back to--well, let me begin
with this. I think that a big change that the Senate bill makes
to current law is a ban on the use of statements taken as a
result of cruel, inhuman, degrading treatment. The old bill,
the current law, permitted that possibility. And I think that
that did more to hurt our credibility in the military
commissions process than any other one thing.
And so, whatever the House of Representatives decides to
do, I would hope that you would agree that we should not permit
the possibility of statements taken as a result of cruel,
inhuman, degrading treatment. That is certainly not what we
would want our military to face. And, as a matter of simple
American values, I would submit that we shouldn't permit it in
any court system governed by the United States.
Mrs. Davis. Any other comments?
Mr. Kris. I agree with that exactly.
Mrs. Davis. Okay, thank you.
As we look to transferring--if we find ourselves in a
position of transferring detainees to the United States, there
are many of those issues that we are going to be looking at:
how we structure the proceedings, procedural rules, due process
rights of course, right to be present during adjudication.
In that transfer, is there anything that you feel might
be--might affect any of these considerations? I mean, are there
some complications that arise as a result of that transfer? And
what should we be the most concerned about?
Mr. Johnson. I think we are both pretty confident that
reform of the Military Commissions Act of 2006, reform of
military commissions to make it a robust process that more
closely resembles the UCMJ process is good all around,
irrespective of where they are conducted.
Mrs. Davis. Is there anything in the way, appellate review
rights, other considerations, that would--that you think would
be at play here that we need to look at further?
Mr. Johnson. The--in terms of appellate rights, the
Administration embraces the idea in the Senate bill that there
ought to be a broader scope of review. I think where we differ
with the Senate bill is we believe that the appellate court
should be an internal military court, a court of military
commission review, plus the D.C. Circuit, United States Court
of Appeals for the D.C. Circuit, and then on to the Supreme
Court.
Mrs. Davis. Thank you.
The Chairman. Thank the gentlelady.
Mr. Rooney. I have Mr. Rooney and Mr. Kratovil, in that
order.
Mr. Rooney. Thank you, Mr. Chairman.
You know, one of the advantages of going last is that I get
to hear everybody else. But it is also a disadvantage, because
my questions are going to be all over the place. So if you bear
with me, I just want to touch on a few things.
The chairman spoke of when the war is over and releasing
detainees and how, Mr. Kris, you would define the end of the
war and how difficult that is because it is a war on terror and
that type of issue, obviously.
One of the things that I might ask you is, when we are
talking about the enemy that we have detained, where is this
enemy from? What country do they fight for? What uniform do
they wear? What flag do they fight under? The answer to all
those questions is obviously----
Mr. Kris. None.
Mr. Rooney. Right. So those things are all violations of
the law of war, correct? Or the Geneva Conventions, as we
understand them?
Mr. Kris. I mean, they would not be entitled to be
privileged belligerents or prisoners of war under the Geneva
Conventions. You are absolutely right about that.
Mr. Rooney. But my question goes more towards the--what
eventually you do with them once there is--if we can agree that
there is something that would be the end of the war. As the
chairman said, that we would just--they would just be released.
Is that correct in--when dealing with Khalid Sheikh Mohammed or
individuals that we have that have violated the Geneva
Conventions?
Mr. Kris. No, and that is--no. And it is interesting, in
the prior discussions we were having, we talked about the
distinction between detaining someone under the law of war for
the duration of the hostilities. And there is some question
about exactly when these hostilities will cease.
But separate from that is an ability to convict someone for
violations of the law of war or violations of the criminal code
and to hold them for the duration of their sentence, which very
well might go quite beyond the end of hostilities. And that
will be a fixed sentence imposed by a court as part of a
prosecution.
Mr. Rooney. All right. And I just wanted to throw that out
there and add that element to that conversation.
You know, one of the things that concerns me--and I know I
don't have much time--but one of the things that concerns me
is, when we are talking about the role of the Commander in
Chief and we are talking about the lawfulness under the laws of
war, the Geneva Convention, prisoner of war status, Guantanamo
Bay, which I also visited, you know, there is a lot left up to
interpretation for the Commander in Chief.
You talked about, just a few minutes ago, one of the hot-
button issues, obviously, are statements that are elicited from
cruel or degrading, you know, punishment or interrogation. Up
until the President started defining certain things, I mean,
that was arguable. I mean, for some people, it was more obvious
than others, but there was room for argument.
My question to you is, as we move forward, the judge
advocates that were here--and some of the questions, quite
frankly, that you have been asked to answer involve a lot of
speculation, and you haven't been able to answer them. The
judge advocates haven't been able to answer them.
I think that it is imperative that we do as much as we can
to be as clear and detailed as possible, so, moving forward, we
are not caught in, sort of, the cloud of war when it comes to
how these people are prosecuted. And that is what we are all
trying to do here today.
But one of the things that is still kind of out there for
me is when we are dealing with future detainees or future
prisoners or whatever you want to call them, specifically with
regard to habeas, extraconstitutional rights. We talk about
detainees in Afghanistan and detainees wherever we are going to
go in the future, with regard to terror.
What do you specifically foresee us doing to make sure that
we are as locked in as possible when we pick up somebody--and
this is kind of an extension of Mr. Conaway's question. If we
pick up somebody, a bad guy, on the battlefield of Afghanistan,
who is clearly a terrorist or al Qaeda or somebody like that,
what rules of criminal procedure are we going to be able to
follow for that person with regard to habeas for the future;
and are we going to be able to address that with what we are
doing here today?
Mr. Johnson. Congressman, let me try to answer this
question this way, which is part of the question you asked
earlier of Mr. Kris. There are no easy, neat, clean answers
about when this was going to be over and how you treat people
in the future if the so-called war ends, which is one of the
reasons why you seek to bring people to justice, so that you
can get out of that process a long prison sentence.
In terms of detainees in places like Bagram, we are
building a new facility. We are putting in place review
procedures, that I think are improved procedures from what we
have now, that have been approved at the CENTCOM level by
General Petraeus. And so I think we are headed in the right
direction there in terms of our ability to hold these people
consistent with the rule of law and consistent with what I
think ought to be our American standards.
Mr. Rooney. I had about ten other questions but my time is
up, Mr. Chairman. Thank you very much.
The Chairman. I thank the gentleman.
Mr. Kratovil.
Mr. Kratovil. Thank you, Mr. Chairman.
Let me begin by thanking both of you for making efforts to
try to resolve what is clearly one of the most complex legal
issues that we have perhaps ever faced. And I appreciate your
trying to find some reasonable compromise, understanding the
differences in the battlefield versus the legal arena.
Once again my chairman, in his country lawyer style, has
hit on the issue directly. The way I see the issue is we have
detained individuals on a relatively minimal standard under
laws of war; and we are justified, according to the Supreme
Court, in continuing custody so long as the conflict continues.
We are struggling with those individuals because, although we
have what I would articulate as perhaps an articulable
suspicion in terms of offenses and their involvement, we don't
have enough--at least it appears to me--to be sending these
individuals to the various forums because if we did, we would
have done so already.
So the question becomes, once the conflict is over, what do
we do? And the--asking a bit more directly than the chairman
did, do you believe, based on the Supreme Court case and the
dicta contained within it, that following the removal of troops
from Iraq, are we going to be able to justify continued
detention of individuals that were detained in the conflict in
Iraq after the combat troops leave? And if not, what do we do
then?
Mr. Johnson. Congressman, Iraq and Afghanistan are
obviously different situations. As we wind down our presence in
Iraq pursuant to the security agreement, that does not mean
that the conflict against al Qaeda and the Taliban is going to
be over. We are very much in Afghanistan, dealing with the
threat in Afghanistan right now. And, so I would expect that
what we are doing will continue there, and part of the mission
of the U.S. military is capture and detention.
Mr. Kratovil. Alright. Let us go down a few more--let us go
down a few years, then. Let us assume that we withdraw from
Afghanistan. We have these individuals that we believe are very
dangerous people although, again, not sufficient proof, in our
view, your view, to bring them before a forum. What do we do
then?
And here is what I am getting at. I know we are looking at
these cases to determine what forums to send them. My question
is, similar to when I was a prosecutor, is what efforts are we
making in reviewing them, to acquire additional evidence so
that we can forward them to these forums and so that we can
hold them beyond the end of the conflict whether in Iraq or
Afghanistan?
Mr. Johnson. That effort, that collection effort is
definitely ongoing.
Mr. Kratovil. What does it consist of?
Mr. Johnson. Through intelligence and military resources
and avenues, we constantly do that if for no other reason than
to find out not just how--you know, authority to keep those
individuals--but, in my view as the military lawyer here, so
that we can gain information about people we haven't yet
captured. So we are constantly doing that.
Mr. Kratovil. Let me--if I have a little more time, with
regard to the voluntariness issue, are you suggesting that in
the battlefield if there was a door knocked down and soldiers
go in and take a statement at gunpoint, are you suggesting that
the voluntariness standard, even under those circumstances,
should be used as opposed to a reliability standard? And if is
so, why?
Mr. Johnson. What we are suggesting is a voluntariness
standard that takes account of that circumstance. So in other
words, in a civilian context, cops and robbers, you try to
discourage the police from taking statements in those
circumstances. But that is the mission of the military. The
military should do that. And so what we are asking for and
urging is a voluntariness standard that takes account of that
circumstance and wouldn't necessarily preclude that statement.
Mr. Kratovil. And, my question to you is, do you think it
is realistic that our courts are going to find that an
individual giving a statement under a voluntariness standard is
going to be admissible?
Mr. Johnson. You have touched on the very reason why I
think we need to get it right, why we need to codify a standard
to take account of that circumstance so that judges don't
misinterpret a voluntariness standard.
Mr. Kratovil. Why not have a different standard of
voluntariness when you are talking about someone who is
detained in custody in a confined setting, and have a
reliability standard that applies when you are dealing with
issues on the battlefield?
Mr. Johnson. Well, that is very close to what I think we
are proposing.
Mr. Kratovil. Okay, thank you. I yield back.
The Chairman. I thank the gentleman.
Mr. Hunter, please.
Mr. Hunter. Thank you, Mr. Chairman.
Gentlemen, thanks for being here. This is, first, a little
bit difficult for me to be sitting here with you because,
frankly, the rules of engagement and what the military lawyers
do on the ground for guys like me is make life hell, frankly.
You make things very difficult.
In fact, I would say that some of the DOD law that exists
with rules of engagement and how we treat detainees actually
makes us kill more people because we don't want to capture
them. I have seen it happen. I have seen guys come in, get
detained, couldn't hold onto them for one reason or another,
according to our JAGs, so we release them. Then we kill them.
And I don't think you understand to a certain point,
especially most JAGs--in fact, a good buddy of mine that I
served with in Fallujah was just here. He is in the FBI now,
but he was a JAG in Fallujah. We have different types, but they
make it very difficult.
In Afghanistan we had a JAG with us 24/7, 24/7 watching the
bad guys. And we saw bad guys doing bad things and the JAG
would say that we could not do anything for one reason or
another, couldn't detain them. And you had a three-star general
relying on an O-3 or an O-4 to give them a decision; and the
general could override them and strike, but if they did, then
it would have been against what that JAG said, and obviously
that general's career would have been in jeopardy.
But anyway, we will go on to the questions here. And I am
not an attorney, so try to speak plainly to me, if you don't
mind. I am at a bit of a disadvantage.
With the nature of these trials, the way that they are
going to be, do you think that we are leaning towards holding
the detainees in our military brigs as opposed to Federal
penitentiaries?
Mr. Johnson. I would----
Mr. Hunter. With the military nature, the way that they are
going to be tried, is that going into the--and I am not one
either who thinks that this Administration came in and all of a
sudden this stuff started. I know in 2007 under the Bush
Administration, they were looking at Camp Pendleton and Miramar
in my district in San Diego to put detainees, because they
thought that would be conducive to trying them in the way that
they are held there. So does that lead into that process of
thinking?
Mr. Johnson. Well, Congressman, let me respectfully
disagree with your characterization of the rule of law.
Mr. Hunter. You really can't disagree, because I have been
there three times and I have seen it. I think I have been there
more than you have, frankly. So if you want to argue with that,
I don't think you are going to be able to.
Mr. Johnson. I have--I have two really good JAGs sitting
right behind me.
Mr. Hunter. Good.
Mr. Johnson. One of them went to law school with the
President. The other has won commendations and so forth for his
time in Iraq.
Mr. Hunter. I am not saying you are not good lawyers. I am
sure you are very good lawyers.
Mr. Johnson. And my point is that your JAG lawyers are
enablers. They empower, they do not prohibit. I am the top
lawyer of the Department of Defense. I am here to work with the
United States military to help them get the job done consistent
with the rule of law. I am not there to stand in the way. And
so I would like to respectfully disagree with the
characterization.
Now, having said that, I do want to address your other
point. I think that where we are headed is a system where you
have both systems of justice available for the interest of
national security to put away the bad guys in one forum or
another. We need to have both court systems available for law-
of-war violations, for Federal criminal offenses.
What we have right now is, frankly, a system that could be
made better, that in the eyes of at least some falls short, and
we have an opportunity to fix it for purposes of promoting
national security. And I hope this Congress will take up that
opportunity and do that.
Mr. Hunter. Okay. Let me move on, because I don't know if
that answered either of my questions. Let me--I am going to set
a time, too.
When you talk about cruel, inhumane, degrading treatment of
detainees, do you think we should afford our military the exact
same thing? Are we going to change boot camp? Are we going to
change SERE [Survival, Evasion, Resistance and Escape] school?
Because we humiliate and degrade our marines, and soldiers, and
sailors and airmen all the time. That is what--I mean, it is
not fun sometimes being in the military; right?
Mr. Johnson. Clearly it is not fun sometimes being in the
military.
Mr. Hunter. We don't get too much sleep. We are sleep-
deprived; right? We don't always get food. We don't always get
to eat three meals a day. So we are giving detainees better
treatment than I got, than those JAGs sitting behind you got.
I mean, if you went to Ranger School--I don't know if
either of you went to Ranger School. He is saying yes. I mean,
he was humiliated and he was degraded. So are we going to make
that same standard for detainees the same standard that we have
too?
Mr. Johnson. Without a doubt, Congressman, I will not
disagree with you. Being in the military is hard, is difficult.
You don't always get three meals a day. But this is--please
understand, sir, this is not about being nice to the bad guys.
It is about American values, who we are as Americans, how we
would want our people treated if they are captured.
There was a discussion of reciprocity a moment ago----
Mr. Hunter. I am out of time. I think the reciprocity
argument is absurd. This is al Qaeda. This is evil incarnate.
And what America does is win wars, and we don't do it with bad
law. We do it by, you know, killing the bad guys.
But thank you very much. I appreciate it. Thank you, Mr.
Chairman.
The Chairman. I thank the gentleman.
It appears we have completed our first round. Before I go
over to the second round--I know Mr. McKeon and some others
wish to ask some questions--what you are asking of us is to
look at the Senate language through your eyes and your
recommendations. And as I understand it, you have five such
recommendations, and I will try to condense them.
The first is to prohibit the use of involuntary statements.
The second is to further regulate the use of hearsay. The third
is to modify the appellate process. The fourth is to state that
a charge of material support, is not a commission that may be
tried in--excuse me--an offense that may be tried in a
commission. And the fifth is to establish a sunset on the use
of the commissions. Am I correct?
Mr. Johnson. Congressman, that sounds right to me. I don't
know that there is----
The Chairman. That is what you are doing; am I correct?
Mr. Johnson. I believe so, except that I think--Mr. Kris
can correct me. I think that we and the Administration are
pretty satisfied with the current Senate language on hearsay. I
could be wrong about that, but I think----
Mr. Kris. I think our language is----
The Chairman. It would help if you would be very, very
clear as to your recommendations to this committee.
Mr. Johnson. We would be happy to do that. For the record,
we would be happy to do that.
The Chairman. Spell it out so we can understand it. Will
you do that for us within 10 days?
Mr. Johnson. Yes, sir.
The Chairman. We would appreciate it.
[The information referred to was not available at the time
of printing.]
The Chairman. Mr. McKeon.
Mr. McKeon. Mr. Chairman, if I might defer to other members
of the committee that have questions, I would be happy to do
that.
The Chairman. Who--we will just go down the line. Does
Mr.--okay.
Mr. Bartlett.
Mr. Bartlett. Yes. Thank you very much.
You stated, Mr. Johnson, that we will not release prisoners
to countries that torture. Does that mean that we have stopped
extraordinary renditions?
Mr. Johnson. As a general matter, Congressman, I think it
is our view that an extradition should occur to bring people to
justice, not push them away from justice, as a general matter.
That would certainly be my view, and I think that is the view
of the Administration.
Mr. Bartlett. And the extraordinary renditions that we are
now approving, they are not going to countries that torture.
Mr. Johnson. I hesitate to comment on specific military
operations or actions. I just would state that general
principle.
Mr. Bartlett. Would it not be a huge contradiction for the
Administration to tell us that they are not going to release
prisoners to countries that torture, and then to continue to
approve extraordinary renditions to countries that they know
darn well do torture?
Mr. Johnson. Again, I hesitate to comment on specific
operations. I am not sure what you have in mind. But as a
general matter, that is my view and I think that is the
Administration view also.
Mr. Bartlett. We have been talking a lot about cessation of
hostilities. We have no intention of releasing these prisoners
that we have already deemed to be so bad that we couldn't
release them even if the court determines that they are
innocent.
Why are we talking about cessation of hostilities? Doesn't
that just create problems for us in the future when we have
withdrawn from Iraq, withdrawn from Afghanistan, and still hold
prisoners?
Mr. Johnson. Well, the question that the chairman asked of
Mr. Kris is a good one: When does this war end? And there is no
easy answer to that question. At least I haven't heard one yet
from an awful lot of very bright people. And so that is the
reason why we think that we have law-of-war detention
authority. But I think even the Supreme Court in the Hamdi case
said circumstances could change, depending on how far out you
go in this conflict, and it is the reason why we think some
form of a periodic review of each detainee's situation is
appropriate, given the nature of this war, because there may
come a point in the future when that person is no longer a
threat or they are such that they could be transferred to some
other country with appropriate security guarantees.
Mr. Bartlett. Questions asked by Mr. Forbes and Mr. Conaway
elicited answers from you, both of you, I think, that indicated
that if the courts found a detainee innocent that we knew was a
really bad guy, that we weren't going to release him. That begs
a couple of very interesting questions.
One of them is: Haven't we already judged him guilty by
determining that he is so bad that no matter what the court
does, we are not going to release him? And if that is so, why
do we go through a court proceeding, particularly in a military
tribunal?
Sir, there are millions of people in the world that when
you mention military tribunal, they cringe because of their
association with military tribunals. I know ours are different,
sir, but this is psychology; and in this area perception is
reality, and the reality is that military tribunals have little
credibility around the world. I think ours are very good. I
have no problem with them. I am not talking about the problem I
have with them; I am talking about the problem that the world
has with them.
It just makes the point that I made, sir, in my first round
of questioning. I am not sure why we are here. I am not sure
why we bought this trouble. I try to follow my mother's counsel
that you shouldn't borrow trouble. If we yet could move these
prisoners to an international court, why don't we do that? We
bragged that this was not our war. We bragged this was a
coalition. Why are we burdened with this as a single nation
when this was a war of a coalition? Why don't we move these
prisoners to an international arena and avoid all of the
national stigma that we are going to get from these
proceedings, no matter what we do and how careful we are?
Mr. Johnson. Well, Congressman, I would urge that we not
think about a decision to detain a captured belligerent as an
adjudication of guilt or innocence. I think the comment that
was made earlier was that that is not law enforcement--that is
not a law enforcement context.
When the United States military makes a determination that
they should detain a belligerent on the battlefield, that is
not an adjudication of guilt. That is a decision, for reasons
of national security and safety, that that person needs to be
retained--detained so that they don't return to the fight. That
is very different from an adjudication of guilt or innocence.
I would try to answer your question by saying that military
commissions, in my judgment, should not be judged as in any way
second-class justice. You say that there is that perception out
there. Well, let me try to address that perception. Our JAGs
cherish the UCMJ. They cherish notions of justice. There are
some excellent JAGs that I work with every day who are
committed to that process.
The Chairman. I thank the gentleman.
It appears Mr. Forbes is next.
Mr. Forbes. Thank you, Mr. Chairman.
And to Mr. Johnson and Mr. Kris, thank you both for being
here. I know it is tough. I know it is long. But you keep
saying you want us to get it right. We can't do that unless we
ask tough questions.
Mr. Kris, you told me earlier that you wanted to talk about
the Administration's position. I am going to ask you about
that, if I can, on some of these issues. When was the last time
that you were at Guantanamo Bay on behalf of the
Administration, or in your capacity?
Mr. Kris. It was sometime within the last few months, I
think.
Mr. Forbes. When you were down there, you noticed the
security that we had for many of the detainees because often
times they are throwing feces through the door, urine through
the door. We have double doors on some of the detainees. We
have guards that are well-trained, as everybody talked about
the professionalism here, looking on each prisoner every three
minutes. They don't move anywhere unless they are with a naval
officer. They are also shackled when they are getting
interrogations, questioning, or when they are having medical
treatments, because they could very easily grab a pin and stab
it through a nurse's eye. That is what all the professional
people told us when we were down there.
Mr. Courtney raised the suggestion earlier about the
general prison population in the United States. Is the
Administration even contemplating putting those prisoners with
the general prison population in the United States? Is that
even a possibility?
Mr. Kris. I think the answer to your question is no, for a
variety of reasons----
Mr. Forbes. And, if the answer is no, then it is
meaningless what Mr. Courtney raises about the general
population.
Mr. Kris. Well, I am not--I mean--in fairness----
Mr. Forbes. Let me ask you a follow-up question. You can
respond any way you want to, in written statements. But where
do we have in the United States that type of security, and what
kind of capacity do we have there now to be able to put these
prisoners?
Mr. Kris. Well, I think there is two different questions
there. One: Should it be a BOP [Bureau of Prisons] facility;
that is, a Federal criminal civilian facility, or a military
base or military facility in the United States? So that is one
distinction. With respect to just the BOP side of it, I think
if I have the numbers right, that we have about more than 200
terrorism-related people already in custody, including 33 at
the Supermax facility----
Mr. Forbes. But the Supermax facility, isn't that 95
percent full all the time, according to what the Department of
Prisons has told us or the Bureau has----
Mr. Kris. That number sounds plausible, but I guess the
point is we can hold some very, very bad people.
Mr. Forbes. All right. Let me follow up on that. You looked
also at the tribunal, the facilities that we built down in
Guantanamo Bay to be able to house these military proceedings.
You also know it is very important that is the only one SCIF-ed
in the United States, because we have security matters that
could come up and we have to have a 40-second delay between
testimony and between statements and between when it is
released to the people watching.
We were told there is not another facility in the United
States that has those capabilities, or like that. Do you
disagree with the information we were given at Guantanamo Bay?
Mr. Kris. I think this is something Jeh--Mr. Johnson----
Mr. Forbes. I will let Mr. Johnson answer that if he could.
Mr. Johnson. The facility you referred to is first-rate,
absolutely. It is an expeditionary facility. It was built that
way. It was built with the intention that it someday would be
moved.
Mr. Forbes. If--you mean you are talking about moving that
facility to somewhere in the United States? Is that even a
possibility?
Mr. Johnson. If we moved the detainees, we would move the
facility.
Mr. Forbes. Then if you did that, and you only have one of
these facilities, you wouldn't have--or even entertain the
possibility of transferring these individuals across the
country, back to the trial proceedings, because they have
motions and everything else. You would have to locate those
prisoners near in conjunction with that facility; isn't that
true?
Mr. Johnson. Ideally we would keep the detainees who are
being prosecuted in military commissions someplace close to the
facility.
Mr. Forbes. So everybody that you would have decided that
is going to be prosecuted through a military commission would
need to be located near that site; isn't that correct?
Mr. Johnson. That would be my optimum solution. Whether it
actually happens that way, I am not sure. But that would be an
efficient way to do it; yes, sir.
Mr. Forbes. Would the Administration even entertain putting
them in other parts of the country and transferring them, with
the security risk that might be present there, to the hearings
they would have before the military tribunals and the actual
proceedings that would take place there?
Mr. Johnson. Ideally, as Mr. Kris would tell you, in
dealing with--with civilian criminal defendants who are
prosecuted, you want to keep them close to a courtroom.
Mr. Forbes. And, Mr. Johnson, my time is almost up. My
question is: Would the Administration even entertain not doing
that?
Mr. Johnson. That would not be--that would not be an
efficient scenario.
Mr. Forbes. Thank you.
Mr. Chairman, thank you so much for your patience, and I
yield back.
The Chairman. Thank you very much.
Mr. Conaway.
Mr. Conaway. Yes, sir. In the interest of prolonging the
misery of our panelists, I do want to talk again, back on the
forward-looking issue, and that is the authorization of use of
force. We had testimony from one of your colleagues last year
that said: In my professional opinion that it would be both
constitutional and prudent to confirm the military's authority
to detain al Qaeda, Taliban, and associated forces.
It was a Mr. Kadis that testified last--last year. He was a
Bush appointee, I suspect.
Mr. Kris, your thoughts on that?
Mr. Kris. If I understand the--excuse me--if I understand
the question correctly, I think the President believes that
with respect to the Gitmo population----
Mr. Conaway. Again, I am not--I couldn't care--this
question has nothing to do with Gitmo. This is a forward-
looking question. We have got a Judge Bates who has said that
habeas corpus applies to Pakistanis taken in Pakistan and
brought to Afghanistan. And so please don't go back to Gitmo.
Mr. Kris. I beg your pardon.
Mr. Conaway. You can go back to Gitmo all you want, but
this is a forward-looking question.
Mr. Kris. I think with respect to forward-looking, I mean
to the extent that we need to have long-term law-of-war
detention, that is something I think the President has made
clear he wants very much to work with Congress on. And if we
need it, I think it might be something that we would consider
statutory authority for. That is getting out ahead, because
right now we are focused on the near term. I don't want to go
back to Guantanamo, but it is----
Mr. Conaway. So are you planning to proffer that
legislative fix that you believe is necessary? We all want to
be able to make sure that the President has got all the
authority he or she ultimately needs to deal with this issue.
Have you got legislation in mind yet?
Mr. Kris. No. We really--I don't think we are there yet.
Mr. Conaway. All right. Just one last thing, Mr. Chairman.
Other than public opinion, in terms of--and how we can talk
about Gitmo. Other than public opinion, is there any--what
other reasons do we have for closing that facility? Will these
prisoners be safer somewhere else? Will they be better cared
for somewhere else? Will it be cheaper somewhere else? Is the
treatment better? I mean--is there anything other than just
our--it is legitimate, Mr. Bartlett--is there any rational
reason, given that we have got trillions of dollars of pending
deficits ahead of us, that we would spend new money on
replicating Gitmo somewhere else in the United States?
Mr. Johnson. The reason to close Guantanamo, sir, is not
just some lofty notion of symbolism. Lots of people, a cross-
section, bipartisan, from John McCain, George W. Bush, Barack
Obama, have said Guantanamo should be closed. Why have they
said that? Because Guantanamo is a bumper sticker for al Qaeda.
Mr. Conaway. Okay. So you are still talking about public
perception. I am saying--is there? Help me----
Mr. Johnson. I am talking about national security, sir. I
am talking about this enhancing national security by closing
this facility.
Mr. Conaway. Okay. So if we replicated Gitmo, and it is--as
you said, we are going to move it into the United States,
doesn't the bad guy still have the exact same issue? So it
really is about the perception that we are dealing with and not
any of the mechanics.
You said earlier in your testimony that--and I agree with
it, having been there myself--that this is a--you couldn't keep
these people in a facility any better than what they are going
to be kept in. In fact, when we move them into a Federal
prison, they will probably have some course of action against
us for having lowered their standard of living by moving them
into the--into a prison here in the United States, given what
they are coming out of in Gitmo. But is there anything besides
just perception, written large?
Mr. Johnson. There are tangible national security reasons
why----
Mr. Conaway. That are unrelated to perception.
Mr. Johnson [continuing]. The facility needs to be closed,
and we are determined to do that.
Mr. Conaway. All right. So we will spend new dollars----
Mr. Johnson. And, sir, I can tell you that for high-value
individuals who we determine we must detain, we will detain
them in a facility as secure, if not more secure, for the
safety of the American people. That, I think I can give you
some pretty good assurance on.
Mr. Conaway. Okay. I have got no question. This whole false
argument that they might escape from whatever facility we keep
them in is a red herring. I don't think anybody in their right
mind thinks any of these people will ever escape.
So anyway, thank you, Mr. Chairman. I yield back.
The Chairman. Thank you. Before I call on Mr. McKeon, does
anyone else wish to ask a question?
Mr. Hunter.
Mr. Hunter. Thank you, Mr. Chairman.
First I would like to, you know, clarify one of my
statements so I don't get chased down by a JAG tomorrow myself.
We didn't release somebody and then shoot them; we had somebody
that we had to release, found them in Fallujah again, and they
were fighting us. And we saw them again. They had been killed
at that point.
And also I understand that JAGs are enablers. I am
talking--but the way that they have to do it, they have to play
around the law as well. They have to try to make things work
for us on the ground that is law that is made here by DOD, and
it makes it difficult for everybody on the ground trying to
make things work.
But the JAG Corps itself I think is good. But it is the law
here that they have to deal with. So my question is this: And--
If we threaten or we verbally abuse during--and help me out
here. I am not even leading to any certain line of questioning
for any particular answer. If we bust down a door and we
threaten somebody, you know, shove a rifle in their face, kick
them down, yell at them, threaten them verbally to get an
answer out of them and they give that answer, what does that
count as in this whole scheme of things?
Mr. Johnson. Well, again it depends on the circumstances.
What we are advocating is a voluntariness standard that takes
account of that battlefield reality.
The other point I would make is that we can't let the tail
wag the dog here. We can't let the law enforcement mission,
which is an important one for national security, overcome the
essential mission of the United States military. And that was
part of that letter I read earlier. The military's mission is
to capture and engage the enemy. That is what they do, and I
don't want them to do it any way different at the point of
capture than they do it now, just to make Mr. Kris happy.
Mr. Hunter. You don't think the MCA is going to change
anything on the ground? It will be the same as it is now when
it comes to the actual point of engagement?
Mr. Johnson. I don't believe that the reforms in the MCA
that are in the Senate bill, or that the Administration is
proposing, would or should alter how the military does its job
at the point of capture; that is correct.
Mr. Hunter. Okay. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Mr. Rooney.
Mr. Rooney. Thank you, Mr. Chairman.
As quickly as I can, going off what Mr. Hunter was just
saying, when you talked about voluntary versus reliability--and
it seemed that Admiral McDonald was sort of saying that, you
know, reliability with elements of voluntary was the preference
and--but you were going voluntary with elements of reliability.
Why is he wrong?
Mr. Johnson. Well, first I respect Admiral McDonald a lot
and I respect his views on this issue. It is one he and I have
discussed extensively. We think that there should be a
voluntariness requirement versus it just being a factor,
because we think that military commission judges, courts, what
have you, are going to try to impose that anyway as we have
more and more of these prosecutions.
So as a requirement, we ought to get it right and make sure
that it accounts for all of the circumstances that Congressman
Hunter is concerned about. So we are advocating a voluntariness
standard, but it has got some good language in there that we
are happy to put forward for the record within the 10 days that
I think is sufficiently flexible to take account of the
battlefield. And when you look at it, it is really not that far
from what Admiral McDonald is saying.
Mr. Rooney. Okay. And I am assuming that because we are
sort of going down uncharted territory here, because we are
fighting a nonconventional-type enemy in a nonconventional war,
we are sort of setting new rules for what Mr. Hunter--his
scenario has.
Assuming we move forward here--and let's just speculate
country X, a true country, North Korea, China, whoever, and we
go back to a conventional war, do these rules apply to future
conflicts, or do they just apply to the conflict that we are in
now with kind of an enemy that is undetermined, be it
nationally or under a common flag? Are we setting new rules of
engagement, new laws of war for all conflicts moving forward;
or if we fight a conventional war, do we go back to the old
system?
Mr. Johnson. Well, the Military Commissions Act and the
Senate bill, on--by their terms, refer to unlawful enemy
combatants or unprivileged enemy belligerents. In other words,
people who violate the laws of war. The bill does not redefine
the laws of war. It does not redefine substantively the laws of
war. And as the chairman noted, what we are advocating is a
sunset provision to deal with changed circumstances.
Mr. Rooney. Right.
One last thing and this goes to Mr. Conaway again. You were
talking about national security, the stigma of Guantanamo Bay.
I asked Mr. Holder on the Judiciary Committee if the stigma--if
there is a stigma with Guantanamo Bay, is--does that still hold
after a trial; evidence comes out, this guy is a really bad
guy, he needs to be put away for the rest of his life,
everybody agrees with that, why can't Guantanamo turn from a
detention center to an actual prison? And Mr. Holder at that
time said, you know, the stigma is still there. He would, I
think, agree with you that there may be national security--a
bumper sticker for al Qaeda.
What I am saying is, doesn't it take leadership at the
highest level from you, from Mr. Holder, from the President, to
say to the world and the global community the stigma is wrong?
We are holding these people in a first-class facility with
people that are doing things the best way possible, giving them
the utmost care with regard to their culture and everything
else. And not to say that Supermax can't hold them. We know
that, you know, they--sure, they are more than capable. But why
do we have to react to what a bumper sticker for al Qaeda might
say, rather than take leadership and say this is the reality,
this is the new stigma, this is the new reality? Why can't we
do that?
Mr. Johnson. First of all, I think we tried that. Second, I
think that the leadership to be exerted here is to respond to
the call of people from both parties, both of the last two
Presidents, this one and the last one, and say let us get it
done. Okay, everyone wants to close Guantanamo, or at least a
lot of people want to close Guantanamo. Let us get it done. Let
us make the bureaucracy work and impose a deadline on doing so.
That is what I think the leadership should be doing.
Mr. Rooney. I understand what you are saying. But again, as
so many of my colleagues, having been there, having seen the
facility, having been told how much money we spent there--and
quite frankly are still spending and still building down there,
which is insane--but anyway, in this day and age, I think that
is, you know, part of the problem a lot of us have, that we
can't sort of redefine what the reality is.
Thank you, Mr. Chairman. Thank you.
The Chairman. I thank the gentleman. Before I call on Mr.
McKeon, let me urge our witnesses that should you have
additional materials you would like to submit to our committee,
feel free to do so. But it would be very helpful if you could
do it within 10 days of today, plus the recommendations that I
referred to a few moments ago.
Mr. McKeon.
Mr. McKeon. Thank you very much, Mr. Chairman. And thank
you very much for letting us continue. I know this is a very
important issue to all of us, and I know the chairman is going
to be going to Guantanamo and will get a firsthand view of what
is going on down there.
I referred in my opening statement that my opinion changed
after having had the opportunity to visit it. All I had seen
from Guantanamo was the pictures that we all saw a few years
ago that caused, apparently, this problem, that caused this
perception that has caused all these problems.
And I would like to associate myself with the questions of
Connolly--Mr. Conaway--I gotta get that out of my head. I have
only known him for several years and I keep wanting to call him
the wrong name--and Mr. Rooney because, frankly, the comments
you made, Mr. Johnson, about how things are different down
there and what the job that is being done down there now--
there was an ad in one of our papers here on Capitol Hill, the
Capitol, a couple of days ago, an ad run by one of our prison
guards from our Federal prisons asking for more help, more
guards. And I met with Federal prison guards a few months ago
and they told me that at times one guard is in a yard with 700,
750 prisoners, and he said, They could kill me at any time.
I guarantee if he were in a yard with these prisoners at
Guantanamo, it wouldn't have to be 700. He would have been
dead. These are guys that have one purpose in life, and I may
be generalizing there, but I think that most people that have
had the opportunity to interrelate with them would have that
same conclusion.
I think you indicated that in your testimony that they are
very dangerous individuals. We have down there a thousand
guards for these--a little over 200 prisoners, and they are
very careful and they still have problems. They would go on
hunger strikes. There are a few leaders that they said they
have separated, but they still get the word back to the other
prisoners: We want you to go on a hunger strike; we want you to
commit suicide; we want you to kill a guard; these kinds of
things, and they carry out those orders.
As much security as there is there, I don't think we have
to worry about terrorist attacks from the outside, which I
think we would have to worry about anywhere that we had them in
the States, and it just--it seems to me that if we could do
what Mr. Rooney suggested, come to a new reality, have the
leadership really say, look, you know, in this time of economy,
this time of--we are still at war. We have got real financial
problems in the country. I think that that facility--the
courthouse alone costs $12 million. You said they could move it
somewhere, and I think you are probably referring to inside the
courtroom, the desks and those kinds of things. The wiring, the
ability to do the translating, the things that Mr. Forbes
talked about, would--I think would cost us a tremendous amount
of money to duplicate anywhere here in the country. I think
there would be political opposition on a grand order.
I used to be on a city council. I know what it takes to get
a building permit to build a building. There would be people
that would be fighting this thing. The delays would be years,
not weeks or months, before a facility could be built to handle
them, to do this situation.
The prosecutor told us that if he could be allowed to move
forward, he could wrap this up in three years. And maybe he is
optimistic. Say, four years; I don't know. You have a better
feel for that. But to think that we could duplicate what we
have there, somewhere here in the country, without the
opposition that would come from it, without the--all of the
problems that would be associated with this kind of a move, let
alone the security problems that are involved, I just wish we
could really step back and take a real look at all of these
circumstances before we move forward in a judgment--and maybe
that is why the President asked for a six months--or the
Commission asked for six months more to look at this. I think
reality really needs to be brought to bear here.
I thank you again for what you are doing. I think you did a
tremendous job of telling your side of the story and carrying
out what your mission is.
Mr. Chairman, I thank you for your desire to go down there.
You are a tremendous chairman for this committee and I
appreciate all that you do. And with that, I yield back.
The Chairman. Mr. McKeon, thank you so much.
Mr. Johnson and Mr. Kris, we appreciate your testimony
today. Please submit to us what else will be helpful, including
the official recommendations that we referred to a few moments
ago.
[The information referred to was not available at the time
of printing.]
The Chairman. With that, we are adjourned.
[Whereupon, at 1:34 p.m., the committee was adjourned.]
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QUESTIONS SUBMITTED BY MEMBERS POST HEARING
July 24, 2009
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QUESTIONS SUBMITTED BY MR. SKELTON
Mr. Skelton. In Admiral MacDonald's written testimony, he advocated
for a two-track approach for determining the admissibility of allegedly
coerced statements. If a statement was elicited for the purpose of
intelligence in the proximity of the battlefield, he seemed to argue
that the statement should be admitted if the interrogator was acting in
accordance with the laws of war and the statement was deemed to be
reliable. If the statement was elicited for the purpose of a possible
prosecution or was secured in a location that is not close to the
battlefield, then he seemed to argue for applying a totality of the
circumstances analysis to determine the voluntariness of the statement
and thus its admissibility.
Do you agree with this balanced approach? If not, why not?
How would you define ``proximate to the battlefield''? Would
interrogations that occurred in a Theater Internment Facility fall
within the second track--that is locations that are not proximate to
the battlefield? How about at an internment facilities below the TIFs?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. Skelton. Since Congress considered the Military Commissions
Act, I have warned about the danger of promulgating rules and
procedures which are constitutionally deficient and subject to court
challenge. The last thing that we want is to convict an individual for
terrorism and then have that conviction overturned because of fatal
flaws in this Act or the accompanying Manual for Military Commissions.
I believe that the Administration's proposed changes to the Manual
and the Senate Armed Services Committee's revisions to the Military
Commissions law itself begin to address my concerns.
What further changes, if any, are necessary to fix the remaining
deficiencies in the existing Military Commissions Act or the version
proposed by the Senate?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. Skelton. In Admiral MacDonald's written testimony, he advocated
for a two-track approach for determining the admissibility of allegedly
coerced statements. If a statement was elicited for the purpose of
intelligence in the proximity of the battlefield, he seemed to argue
that the statement should be admitted if the interrogator was acting in
accordance with the laws of war and the statement was deemed to be
reliable. If the statement was elicited for the purpose of a possible
prosecution or was secured in a location that is not close to the
battlefield, then he seemed to argue for applying a totality of the
circumstances analysis to determine the voluntariness of the statement
and thus its admissibility.
Do you agree with this balanced approach? If not, why not?
How would you define ``proximate to the battlefield''? Would
interrogations that occurred in a Theater Internment Facility fall
within the second track--that is locations that are not proximate to
the battlefield? How about at an internment facilities below the TIFs?
Mr. Kris. The Administration believes there is a significant risk
courts will find that the Due Process Clause applies to military
commission proceedings, and that due process requires that statements
of the accused offered in the context of commission proceedings must
have been voluntarily given. A standard based on reliability alone
would be vulnerable to a constitutional due process challenge in those
cases where a military commission construed it to allow the admission
of involuntary statements of the accused. The use of such statements
might then be subject to reversal on appeal. Accordingly, there arc
compelling legal and policy reasons to include an express voluntariness
requirement.
That said, we believe that any voluntariness requirement for
military commissions cases should account, consistent with the law, for
the context in which statements later considered by military
commissions can occur. Specifically, the Administration has proposed
the following as an alternative to Sec. 948r of the Senate bill, which
includes a voluntariness standard for military commissions cases, as
well as a clearer prohibition on the use of any statement obtained by
torture or cruel, inhuman, or degrading treatment:
``Sec. 948r. Treatment of statements obtained by torture or
cruel, inhuman, or degrading treatment; self-incrimination;
other statements by the accused
``(a) Exclusion Of Statements Obtained By Torture Or Cruel,
Inhuman, Or Degrading Treatment.--No Statement obtained by use
of torture or by cruel, inhuman, or degrading treatment (as
defined by section 1003 of the Detainee Treatment Act of 2005
(42 U.S.C. 2000dd)), whether or not under color of law, shall
be admissible in a military commission under this chapter,
except against a person accused of torture or such treatment as
evidence that the statement was made.
``(b) Self-Incrimination Prohibited.--No person shall be
required to testify against himself at a proceeding of a
military commission under this chapter.
``(c) Other Statements of the Accused.--A statement of the
accused may be admitted in evidence in a military commission
under this chapter only if the military judge finds that the
statement was voluntarily given. In determining whether a
statement is voluntarily given, the military judge shall
consider the totality of the circumstances, including, as
appropriate, the details of the taking of the statement,
accounting for the circumstances of the conduct of military and
intelligence operations during hostilities; the characteristics
of the accused, such as military training, age, and education
level; and the lapse of time, change of place, or change of
identity of the questioners between the statement sought to be
admitted and any prior questioning of the accused.
The Administration can also support the following, which has the
support of the Army, Navy, and Air Force Judge Advocates General, the
Staff Judge Advocate to the Commandant of the Marine Corps, and the
Legal Counsel to the Chairman of the Joint Chiefs of Staff:
``Sec. 948r. Exclusion of statements obtained by torture or
cruel, inhuman, or degrading treatment; prohibition of self-
incrimination; admission of other statements of the accused
``(a) Exclusion Of Statements Obtained By Torture Or Cruel,
Inhuman, Or Degrading Treatment.--No statement obtained by use
of torture or by cruel, inhuman, or degrading treatment (as
defined by section 1003 of the Detainee Treatment Act of 2005
(42 U.S.C. 2000dd)), whether or not under color of law, shall
be admissible in a military commission under this chapter,
except against a person accused of torture or such treatment as
evidence that the statement was made.
``(b) Self-Incrimination Prohibited.--No person shall be
required to testify against himself at a proceeding of a
military commission under this chapter.
``(c) Other Statements of the Accused.--A statement of the
accused may be admitted in evidence in a military commission
under this chapter only if the military judge finds--
``(1) that the totality of the circumstances renders
the statement reliable and possessing sufficient
probative value; and
``(2) at least one of the following:
``(A) That the statement was made incident to
lawful conduct during military operations at
the point of capture or during closely related
active combat engagement and the interests of
justice would best be served by admission of
the statement into evidence.
``(B) That the statement was voluntarily
given.
``(d) Determination of Voluntariness.--In determining for
purposes of subsection (c)(2)(B) whether a statement was
voluntarily given, the military judge shall consider the
totality of the circumstances, including as appropriate, the
following:
``(1) The details of the taking of the statement,
accounting for the circumstances of the conduct of
military and intelligence operations during
hostilities.
``(2) The characteristics of the accused, such as
military training, age, and education level.
``(3) The lapse of time, change of place, or change
in identity of the questioners between the statement
sought to be admitted and any prior questioning of the
accused.
Mr. Skelton. What factors will be considered to determine when an
end of hostilities has been achieved and, thus, continued detention is
no longer justified under the Supreme Court's Hamdi decision and the
laws of war?
Mr. Kris. A plurality of the Supreme Court concluded in Hamdi v.
Rumsfeld, 542 U.S. 507 (2005), that ``Congress has clearly and
unmistakably authorized detention of those individuals covered in the
2001 Authorization to Use Military Force (AUMF)'' and that ``[t]he
capture and detention of lawful combatants and the capture, detention,
and trial of unlawful combatants, by `universal agreement and practice'
are `important incident[s] of war.' '' Id. at 518-19. According to the
plurality, the grant of detention authority in the AUMF is best
understood to endure ``for the duration of the relevant conflict,''
although this understanding ``may unravel'' if the circumstances of the
conflict are ``entirely unlike those of the conflicts that informed the
development of the law of war.'' Id. at 520-21.
Based on Hamdi, the Administration believes the detention authority
provided under the 2001 AUMF, as informed by the law of war, will
continue so long as the United States remains involved in active
hostilities against al Qaeda, the Taliban, and affiliated forces. In
the current circumstances, active hostilities are unlikely to end
pursuant to a peace treaty, armistice, capitulation, or a dispositive
military operation. In other contexts, the Supreme Court has indicated
that ``[w]ar does not cease with a cease-fire order,'' Ludecke v.
Watkins, 335 U.S. 160, 167 (1948), and that the ``power to be exercised
by the President [in that case, the power to expel enemy aliens] is a
process which begins when war is declared but is not exhausted when the
shooting stops.'' Id. `` `The state of war' may be terminated by treaty
or legislation or Presidential proclamation. Whatever the modes, its
termination is a political act.'' Ludecke, 335 U.S. at 168-69. At a
minimum, we believe active hostilities will continue--and detention of
enemy forces will be authorized--as long as the United States is
involved in active combat operations against such forces. In reaching
the determination that active hostilities have ceased, we would likely
consider factors that have been recognized in international law as
relevant to the existence of an armed conflict, including the frequency
and level of intensity of any continuing violence generated by enemy
forces; the degree to which they maintain an organizational structure
and operate according to a plan; the enemy's capacity to procure,
transport and distribute arms; and the enemy's intent to inflict
violence.
______
QUESTIONS SUBMITTED BY MR. MCKEON
Mr. McKeon. The Department of Justice recently argued in the
Maqaleh case that the Boumediene decision only affected the habeas
statute's application to detainees at Guantanamo Bay and nowhere else.
Does the Administration still hold this view regarding the detainees in
Afghanistan?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. Why did the Administration decide to favor prosecution
in federal criminal courts?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. Did the TJAGs advise the Task Force against stating
this preference for federal courts?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. According to the current Chief Prosecutor for the
Military Commissions, the prosecution of the 9/11 coconspirators could
be completed within 24-36 months in a military commission.
Do you share this assessment?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. How long do you think it would take if the case were
removed and restarted in federal court?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. Do you think an Article III court can adequately
protect sources and methods in the same manner as the military
commissions have proven they can?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. In April, Judge Bates on the D.C. district court
recognized a right of habeas for particular detainees held at Bagram
Air Base in Afghanistan, specifically those captured outside of
Afghanistan. In a recent Wall Street Journal Article, legal scholars
David Rivkin and Lee Casey asserted that this ruling has already caused
the military to decrease its operations in the Afghan-Pakistan border
region to avoid claims by detainees that they were captured outside of
Afghanistan.
Do you agree with this assertion?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. Are any of the Task Forces recommending that the
Administration change the standard to include refusing to transfer if a
detainee might experience cruel, inhuman, or degrading treatment in a
potential host country?
Mr. Johnson. [The information referred to was not available at the
time of printing.]
Mr. McKeon. The Department of Justice recently argued in the
Maqaleh case that the Boumediene decision only affected the habeas
statute's application to detainees at Guantanamo Bay and nowhere else.
Does the Administration still hold this view regarding the detainees in
Afghanistan?
Mr. Kris. Yes. The Government has appealed the lower court's
decision in the Maqaleh case, which extended habeas corpus rights to
detainees held at the Bagram Air Base in Afghanistan. The position
argued by the Government in that litigation remains the
Administration's position.
Mr. McKeon. Why did the Administration decide to favor prosecution
in federal criminal courts?
Mr. Kris. Federal courts are well-established, with clear rules and
years of precedent to draw on. Federal courts also have long-standing
experience trying complicated cases, including terrorism cases, and a
proven and recent track record of prosecuting and convicting
terrorists. That said, the Administration is committed to using all
elements of national power and authority--including both federal courts
and military commissions--to defeat our enemy and to advance the
interests of justice. Under the protocol jointly developed by the
Departments of Defense and Justice to determine whether individual
cases will be tried in a federal court or military commission, there is
a ``presumption that, where feasible, referred cases will be prosecuted
in an Article III court,'' but that presumption can be overcome where
``other compelling factors make it more appropriate to prosecute a case
in a reformed military commission.''
Mr. McKeon. Did the TJAGs advise the Task Force against stating
this preference for federal courts?
Mr. Kris. The Administration's policy that, where feasible,
suspected terrorists should be prosecuted in Article III courts is
reflected in Executive Order 13492, signed by the President on January
22, 2009, his second full day in office. It is also reflected in the
speech the President delivered at the National Archives on May 21,
2009. This policy did not originate with the Detention Policy Task
Force. In addition, the prosecution protocol adopted by the Department
of Justice and the Department of Defense states that ``there is a
presumption that, where feasible, referred cases will be prosecuted in
an Article III court, in keeping with traditional principles of federal
prosecution. Nonetheless, where other compelling factors make it more
appropriate to prosecute a case in a reformed military commission, it
may be prosecuted there.'' The Chief Prosecutor of the Office of
Military Commissions (who is a JAG) was consulted in the course of the
negotiation of this protocol and provided advice concerning it. The
TJAGs' own views about prosecuting suspected terrorists in federal
courts or by military commission are reflected in the testimony they
gave before the House Armed Services Committee on July 16. Vice Admiral
MacDonald, the Navy Judge Advocate General, said, for example, ``I
understand the administration may have, and we may have, some reasons
for looking towards Article III courts . . . that may cause us in a
particular case to defer to an Article III prosecution. But I think at
the end of the day, we need to build a [military commissions] system
that can stand on its own.'' The Administration is working with
Congress to do exactly that.
Mr. McKeon. According to the current Chief Prosecutor for the
Military Commissions, the prosecution of the 9/11 coconspirators could
be completed within 24-36 months in a military commission.
Do you share this assessment?
Mr. Kris. How long the cases will ultimately take will depend on a
number of factors. The Chief Prosecutor's estimate sounds reasonable to
us.
Mr. McKeon. How long do you think it would take if the case were
removed and restarted in federal court?
Mr. Kris. If these cases were brought in federal court, the
Department of Justice would indict the defendants promptly and would
prosecute vigorously. We would like to obtain justice as quickly as
possible. How long the cases will ultimately take will depend on a
number of factors.
Mr. McKeon. Do you think an Article III court can adequately
protect sources and methods in the same manner as the military
commissions have proven they can?
Mr. Kris. Yes. Federal courts have a long, successful track record
in handling classified evidence and protecting sensitive sources and
methods, including in international terrorism cases.
Mr. McKeon. In April, Judge Bates on the D.C. district court
recognized a right of habeas for particular detainees held at Bagram
Air Base in Afghanistan, specifically those captured outside of
Afghanistan. In a recent Wall Street Journal Article, legal scholars
David Rivkin and Lee Casey asserted that this ruling has already caused
the military to decrease its operations in the Afghan-Pakistan border
region to avoid claims by detainees that they were captured outside of
Afghanistan.
Do you agree with this assertion?
Mr. Kris. As you are aware, this issue of habeas rights for
individuals held at Bagram is the subject of ongoing litigation in the
Maqaleh v. Gates case, and we therefore cannot comment on the issues
presented in the case. That being said, the essential mission of the
U.S. military is to capture or engage the enemy, and the military
should not be required to change how it conducts effective military
operations to suit the needs of possible habeas proceedings. We in the
Administration strongly believe that the detention policy framework the
Administration is developing, in consultation with the Congress and
consistent with court rulings, should not and will not cause the
military to deviate from this mission.
Mr. McKeon. Are any of the Task Forces recommending that the
Administration change the standard to include refusing to transfer if a
detainee might experience cruel, inhuman, or degrading treatment in a
potential host country?
Mr. Kris. The Special Task Force on Interrogation and Transfer
Policies is considering issues raised by the transfer of detainees from
or through United States custody to the custody of another country.
Currently, as a matter of law and policy, the United States will not
transfer anyone to another country if it is determined that it is more
likely than not that the transferee will be tortured in the receiving
country. The Task Force is considering whether this standard should be
changed as a matter of policy.
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