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                                                        S. Hrg. 111-190

LEGAL ISSUES REGARDING MILITARY COMMISSIONS AND THE TRIAL OF DETAINEES 
                    FOR VIOLATIONS OF THE LAW OF WAR

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

                                HEARING

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              JULY 7, 2009

                               __________

         Printed for the use of the Committee on Armed Services







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                      COMMITTEE ON ARMED SERVICES

                     CARL LEVIN, Michigan, Chairman

EDWARD M. KENNEDY, Massachusetts     JOHN McCAIN, Arizona
ROBERT C. BYRD, West Virginia        JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JEFF SESSIONS, Alabama
JACK REED, Rhode Island              SAXBY CHAMBLISS, Georgia
DANIEL K. AKAKA, Hawaii              LINDSEY GRAHAM, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
E. BENJAMIN NELSON, Nebraska         MEL MARTINEZ, Florida
EVAN BAYH, Indiana                   ROGER F. WICKER, Mississippi
JIM WEBB, Virginia                   RICHARD BURR, North Carolina
CLAIRE McCASKILL, Missouri           DAVID VITTER, Louisiana
MARK UDALL, Colorado                 SUSAN M. COLLINS, Maine
KAY R. HAGAN, North Carolina
MARK BEGICH, Alaska
ROLAND W. BURRIS, Illinois

                   Richard D. DeBobes, Staff Director

               Joseph W. Bowab, Republican Staff Director

                                  (ii)





                            C O N T E N T S

                               __________

                    CHRONOLOGICAL LIST OF WITNESSES

Legal Issues Regarding Military Commissions and the Trial of Detainees 
                    for Violations of the Law of War

                              july 7, 2009

                                                                   Page

Johnson, Hon. Jeh C., General Counsel, Department Of Defense.....     7
Kris, Hon. David S., Assistant Attorney General, National 
  Security Division, Department Of Justice.......................     9
MacDonald, VADM Bruce E., USN, Judge Advocate General, United 
  States Navy....................................................    12
Hutson, RADM John D. USN (Ret.), Former Judge Advocate General of 
  the Navy.......................................................    43
Altenburg, MG John D. Jr., USA (Ret.), Former Appointing 
  Authority for Military Commissions.............................    46
Marcus, Daniel, Fellow in Law and Government, Washington College 
  of Law, American University....................................    50
Annex A..........................................................   138
Annex B..........................................................   140
Annex C..........................................................   143
Annex D..........................................................   149

                                 (iii)

 
LEGAL ISSUES REGARDING MILITARY COMMISSIONS AND THE TRIAL OF DETAINEES 
                    FOR VIOLATIONS OF THE LAW OF WAR

                              ----------                              


                         TUESDAY, JULY 7, 2009

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:34 a.m. in room 
SD-106, Dirksen Senate Office Building, Senator Carl Levin 
(chairman) presiding.
    Committee members present: Senators Levin, Lieberman, Reed, 
Bill Nelson, Ben Nelson, Webb, Udall, Hagan, Begich, McCain, 
Inhofe, Sessions, Chambliss, Graham, Thune, Martinez, and 
Collins.
    Committee staff members present: Richard D. DeBobes, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: Gerald J. Leeling, counsel; 
Peter K. Levine, general counsel; and William G.P. Monahan, 
counsel.
    Minority staff members present: Joseph W. Bowab, Republican 
staff director; Richard H. Fontaine, Jr., deputy minority staff 
director; Michael V. Kostiw, professional staff member; and 
David M. Morriss, minority counsel.
    Staff assistants present: Mary C. Holloway, Paul J. 
Hubbard, and Christine G. Lang.
    Committee members' assistants present: James Tuite, 
assistant to Senator Byrd; Christopher Griffin, assistant to 
Senator Lieberman; Carolyn A. Chuhta, assistant to Senator 
Reed; Neal Higgins, assistant to Senator Bill Nelson; Ann 
Premer, assistant to Senator Ben Nelson; Patrick Hayes, 
assistant to Senator Bayh; Gordon I. Peterson, assistant to 
Senator Webb; Roger Pena, assistant to Senator Hagan; Lindsay 
Young, assistant to Senator Begich; Gerald Thomas, assistant to 
Senator Burris; Anthony J. Lazarski, assistant to Senator 
Inhofe; Lenwood Landrum and Sandra Luff, assistants to Senator 
Sessions; Clyde A. Taylor IV, assistant to Senator Chambliss; 
Adam G. Brake, assistant to Senator Graham; Jason Van Beek, 
assistant to Senator Thune; Dan Fisk and Brian W. Walsh, 
assistants to Senator Martinez; and Chip Kennett, assistant to 
Senator Collins.

       OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN

    Chairman Levin. Good morning, everybody. The committee 
meets today to consider the important issue of military 
commissions and the trial of detainees for violations of the 
law of war.
    On June 25, the committee unanimously voted to include a 
provision on military commissions in the National Defense 
Authorization Act (NDAA) for Fiscal Year 2010. This bill has 
now been sent to the full Senate for its consideration. I thank 
Ranking Member Senator McCain as well as Senator Graham and all 
the members of the committee for their work on this important 
matter.
    In its 2006 decision in the Hamdan case, the Supreme Court 
held that Common Article III of the Geneva Conventions 
prohibits the trial of detainees for violations of the law of 
war, unless the trial is conducted ``by a regularly constituted 
court, affording all of the judicial guarantees which are 
recognized as indispensable by civilized peoples.'' The court 
concluded that: ``The regular military courts in our system are 
the courts-martial established by congressional statutes,'' but 
that a military commission can be regularly constituted by the 
standards of our military justice system ``if some practical 
need explains deviations from court-martial practice.''
    Similarly, the court found that the provision for 
``judicial guarantees which are recognized as indispensable by 
civilized peoples'' requires at a minimum that any deviation 
from the procedures governing courts-martial be justified by 
evident practical need.
    The Supreme Court found that the military commissions 
established pursuant to President Bush's military order of 
November 13, 2001, fail to meet that test. The military 
commissions subsequently authorized by Congress in the Military 
Commissions Act (MCA) of 2006 also clearly fail to meet that 
test as well because they deviate from court-martial practice 
by permitting the routine use of coerced testimony, by 
authorizing reliance on hearsay evidence even when direct 
evidence is reasonably available, and by establishing a 
presumption that the procedures and precedents applicable in 
trials by court-martial will not apply to military commissions.
    The double failure that I've just described to establish a 
system that provides basic guarantees of fairness identified by 
our Supreme Court has placed a cloud over military commissions 
and has led some to conclude that the use of military 
commissions can never be fair, credible, or consistent with our 
basic principles of justice. While the previous Congress's 
effort failed to meet the standards established by the Supreme 
Court in the Hamdan case, I believe that military commissions 
can be designed to meet those standards and that if they do 
they can play a legitimate role in prosecuting violations of 
the law of war.
    President Obama has said that he believes this as well. In 
his May 21, 2009, speech at the National Archives, the 
President said: ``Military commissions have a history in the 
United States dating back to George Washington and the 
Revolutionary War. They are an appropriate venue for trying 
detainees for violations of the laws of war. They allow for the 
protection of sensitive sources and methods of intelligence-
gathering; they allow for the safety and security of 
participants; and for the presentation of evidence gathered 
from the battlefield that cannot always be effectively 
presented in Federal courts.''
    Continuing the quote of President Obama: ``Instead of using 
the flawed commissions of the last 7 years, my administration 
is bringing our commissions in line with the rule of law. We 
will no longer permit the use of evidence as evidence 
statements that have been obtained using cruel, inhuman, or 
degrading interrogation methods. We will no longer place the 
burden to prove that hearsay is unreliable on the opponent of 
the hearsay, and we will give detainees greater latitude in 
selecting their own counsel and more protections if they refuse 
to testify.
    ``These reforms,'' he said, ``among others, will make our 
military commissions a more credible and effective means of 
administering justice, and I will work with Congress and 
members of both parties, as well as legal authorities across 
the political spectrum, on legislation to ensure that these 
commissions are fair, legitimate, and effective.''
    The procedures for military commissions have varied over 
the years, as the procedures followed in our military justice 
system have varied. The Supreme Court noted in the Hamdan case 
that, while procedures governing trials by military commission 
are typically those governing court-martial, the ``uniformity 
principle'' is not an inflexible one. It does not preclude all 
departures from the procedures dictated for use by court-
martial, but any departure, the Supreme Court said, ``must be 
tailored to the exigency that necessitates it.''
    That is the standard that we've tried to apply in adopting 
the procedures for military commissions that we have included 
in the bill that we referred to the full Senate. This new 
language addresses a long series of problems with the military 
commission procedures currently in law. For example, relative 
to the admissibility of coerced testimony, the provision in our 
bill would eliminate the double standard in existing law under 
which coerced statements are admissible if they were obtained 
prior to December 30, 2005.
    Relative to the use of hearsay evidence, the provision in 
our bill would eliminate the extraordinary language in the 
existing law which places the burden on detainees to prove that 
hearsay evidence introduced against them is not reliable and 
probative.
    Relative to the issue of access to classified evidence and 
exculpatory evidence, the provision in our bill would eliminate 
the unique procedures and requirements which have hampered the 
ability of defense teams to obtain information and have led to 
so much litigation. We would substitute the more established 
procedures based on the Uniform Code of Military Justice 
(UCMJ), with modest changes to ensure that the government 
cannot be required to disclose classified information to 
unauthorized persons.
    Of great importance, the provision in our bill would 
reverse the existing presumption in the MCA of 2006 that rules 
and procedures applicable to trials by court-martial would not 
apply. Our new language says, by contrast, that ``Except as 
otherwise provided, the procedures and rules of evidence 
applicable in trials by general court-martial of the United 
States shall apply in trials by military commission under this 
chapter.''
    The exceptions to this rule are, as suggested by the 
Supreme Court, carefully tailored to the unique circumstances 
of the conduct of military and intelligence operations during 
hostilities.
    Three years ago when the committee considered similar 
legislation on military commissions, I urged that we apply two 
tests. First, will we be able to live with the procedures that 
we establish if the tables are turned and our own troops are 
subjected to similar procedures? Second, is the bill consistent 
with our American system of justice and will it stand up to 
scrutiny on judicial review? I believe those remain the right 
questions for us to consider and that the language that we have 
included in the NDAA for Fiscal Year 2010 meets both tests.
    Over the last 3 years, we have seen the legal advisor to 
the Convening Authority for Military Commissions forced to step 
aside after a military judge found that he had compromised his 
objectivity by aligning himself with the prosecution. We have 
had prosecutors resign after making allegations of improper 
command influence and serious deficiencies in the military 
commission process. We have had the chief defense counsel raise 
serious concerns about the adequacy of resources made available 
to defendants in military commission cases, writing that, 
``Regardless of its other procedures, no trial system will be 
fair unless the serious deficiencies in the current system's 
approach to defense resources are rectified.''
    So even if we're able to enact new legislation that 
successfully addresses the shortcomings in existing law, we 
still have a long way to go to restore public confidence in 
military commissions and the justice that they produce. 
However, we will not be able to restore confidence in military 
commissions at all unless we first substitute new procedures 
and language to address the problems with the existing statute.
    Again, I want to thank Senator McCain, Senator Graham, and 
the other members of the committee for all of the work that 
they've put into this bill and to this issue. The Senate will 
be considering the entire bill, including these provisions, 
hopefully starting next Monday or Tuesday.
    Senator McCain.
    Senator McCain. Mr. Chairman, Senator Inhofe has asked to 
make a brief comment if that's agreeable to you.
    Chairman Levin. Sure, of course.
    Senator Inhofe. I thank the ranking member for this 
courtesy. I'm the ranking member on the Environment and Public 
Works Committee, and we have a hearing that's going on at the 
same time. I do have a list of questions I'll be submitting for 
the record, including such things as the impact of placing 
detainees in the U.S. prison system pre-trial and post-trial, 
the security risks of escape, where these detainees will be 
tried and at what risk, the advantages of using the complex 
we've all seen down there, the Expeditionary Legal Complex that 
is designed for tribunals, the rules of evidence that are 
between a tribunal and a Federal court system, and lastly some 
questions about the advisability of reading Miranda rights to 
captured terrorists.
    I thank you, and I will be submitting these and I 
appreciate the opportunity to make that statement.
    Chairman Levin. Thank you, Senator Inhofe.
    Senator McCain.

                STATEMENT OF SENATOR JOHN McCAIN

    Senator McCain. Thank you, Mr. Chairman. I want to join you 
in welcoming our witnesses on both panels this morning. I 
appreciate your scheduling the hearing and I appreciate the 
expert advice and experience in these matters that our 
witnesses bring to our discussions on military commissions and 
detainee policy.
    This committee has led the way in dealing with detainee 
issues and developing legislation on detainee matters, 
sometimes in cooperation with the White House and sometimes 
over its strong objections. The NDAA for Fiscal Year 2010, 
which was reported out of this committee unanimously on June 
25, 2009, again takes a leading role by including changes to 
the MCA of 2006.
    I'm pleased to have worked with you and Senator Graham and 
others on this legislation. While we haven't resolved all the 
thorny issues that military commissions and other aspects of 
detainee policy present, I believe we've made substantial 
progress that will strengthen the military commissions system 
during appellate review, provide a careful balance between 
protection of national security and American values, and allow 
the trials to move forward with greater efficiency toward a 
just and fair result.
    The first panel is composed of experts in national security 
and legal matters from within the government, including senior 
officials of the Department of Defense (DOD), Department of 
Justice (DOJ), and our uniformed Judge Advocate General (JAG) 
Corps. The witnesses on our second panel have similar practical 
and academic experience, but are now outside the government. 
I'm particularly interested in hearing the views of witnesses 
on both panels on problems that have been encountered 
implementing the current military commissions system, including 
the speed of bringing cases to trial and what should be done to 
make the system work more smoothly, ways in which to deal with 
the important issue of protection of classified information, 
whether the current military commissions system adequately 
addresses alleged terrorist acts by al Qaeda and its operatives 
that occurred before the attacks on September 11, 2001, such as 
the bombing of the USS Cole and our East African embassies, 
whether the rules on use of hearsay testimony at trial strike 
the right balance between the conditions of an ongoing war or 
whether improvements should be made, whether the definition of 
``unlawful enemy combatant'' or ``unprivileged belligerent'' 
should be modified, whether changes should be made in the 
appellate review of military commissions.
    While our hearing today is focused on military commissions 
and the trial of detainees for violations of the law of war, 
there are a number of enormously difficult issues related to 
detainee policy that we must also come to grips with in a 
comprehensive fashion before we can close the detention 
facility at Guantanamo Bay, as President Obama has pledged to 
do.
    Mr. Chairman, the issues presented by the detainees at 
Guantanamo and overseas in Afghanistan are among the most 
difficult policy decisions this administration faces. I look 
forward to hearing the views of our witnesses and working with 
you on these matters as the DOD bill moves forward toward floor 
consideration and conference with the House of Representatives.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator McCain follows:]
               Prepared Statement by Senator John McCain
    Mr. Chairman, I want to join you in welcoming our witnesses on both 
panels this morning. I appreciate you scheduling this hearing, and I 
appreciate the expert advice and experience in these matters that our 
witnesses bring to our discussions on military commissions and detainee 
policy.
    This committee has led the way in dealing with detainee issues and 
developing legislation on detainee matters, sometimes in cooperation 
with the White House and sometimes over its strong objections. The 
National Defense Authorization Act for Fiscal Year 2010, which was 
reported out of this committee unanimously on June 25, again takes a 
leading role by making recommendations for changes to the Military 
Commissions Act of 2006. I have worked with you in this effort, as has 
Senator Lindsey Graham. While we have not resolved all the thorny 
issues that military commissions and other aspects of detainee policy 
present, I believe we have made substantial progress that will 
strengthen the military commissions system during appellate review, 
provide a careful balance between protection of national security and 
American values, and allow the trials to move forward with greater 
efficiency toward a just and fair result.
    Our first panel is composed of experts in national security and 
legal matters from within the government, including senior officials of 
the Defense Department, Justice Department, and our uniformed Judge 
Advocate General's Corps. The witnesses on our second panel have 
similar practical and academic experience who are now outside the 
government. I am particularly interested in hearing the views of 
witnesses on both panels on:

         Problems that have been encountered implementing the 
        current military commissions system, including the speed of 
        bringing cases to trial, and what should be done to make the 
        system work more smoothly;
         Issues dealing with the protection of classified 
        information and the process of providing declassified 
        substitutes or summaries to the detainee and his legal team and 
        whether these procedures can be made more efficient while still 
        protecting national security;
         Whether the current military commissions system 
        adequately addresses alleged terrorist acts by al Qaeda and its 
        operatives that occurred before the attacks on September 11, 
        2001, such as the bombing of the USS Cole and our East Africa 
        embassies;
         Whether the rules on use of hearsay testimony at trial 
        strike the right balance given the conditions of an ongoing war 
        or whether improvements should be made;
         Whether the definition of ``unlawful enemy combatant'' 
        or ``unprivileged belligerent'' should be modified;
         Whether changes should be made in the appellate review 
        of military commissions.

    While our hearing today is focused on military commissions and the 
trial of detainees for violations of the law of war, there are a number 
of enormously difficult issues related to detainee policy that we must 
also come to grips with in a comprehensive fashion before we can close 
the detention facility at Guantanamo Bay, as President Obama has 
pledged to do. I would also like the witnesses to provide their views 
on:

         How would you propose sorting cases that should be 
        tried in Article III Federal courts and those that should be 
        tried before a military commission;
         What happens to detainees who are found ``not guilty'' 
        at trial;
         Where should detainees who are convicted of war crimes 
        be incarcerated;
         What sort of system should apply to those detainees 
        who we cannot try, but who are too dangerous to release;
         What sort of review should apply to those detainees 
        captured off the battlefield, but who are held in battlefield 
        detention facilities such as those at Bagram Air Base in 
        Afghanistan;
         How can we best ensure that those detainees who are 
        released to another country don't return to the fight;
         If all the detainees cannot be tried or repatriated to 
        another country by January 2010, what should we do about 
        closing Guantanamo?

    Mr. Chairman, the issues presented by the detainees at Guantanamo 
and overseas in Afghanistan are among the most difficult policy 
decisions this administration faces. I look forward to hearing the 
views of our witnesses and to working with you on these matters as the 
National Defense Authorization Act moves ahead toward floor 
consideration and conference with the House of Representatives. I am 
convinced that we must solve these difficult issues now and I am 
committed to doing so. Thank you.

    Chairman Levin. Thank you so much, Senator McCain.
    We'll first now hear from our inside panel, first the 
General Counsel for DOD, Jeh Johnson.

 STATEMENT OF HON. JEH C. JOHNSON, GENERAL COUNSEL, DEPARTMENT 
                           OF DEFENSE

    Mr. Johnson. Thank you very much, Mr. Chairman, Senator 
McCain, members of this committee. You have my prepared 
statement. I will dispense with the full reading of it and just 
make some abbreviated opening comments here.
    Chairman Levin. All the statements will be made part of the 
record in full.
    Mr. Johnson. Thank you.
    I want to thank this committee for taking the initiative on 
a bipartisan basis to seek reform of military commissions. In 
his speech, as the chairman remarked, at the National Archives 
on May 21, President Obama called for the reform of military 
commissions and pledged to work with Congress to amend the MCA 
of 2006. Speaking on behalf of the administration, we welcome 
the opportunity to be here today and to work with you on this 
important initiative.
    Military commissions can and should contribute to our 
national security by becoming a viable forum for trying those 
who violate the laws of war. By working to improve military 
commissions, to make the process more fair and credible, we 
enhance our national security by providing the government with 
effective alternatives for bringing to justice those 
international terrorists who violate the laws of war.
    Those are the remarks I wanted to make initially. Senator, 
I look forward to your questions.
    [The prepared statement of Mr. Johnson follows:]
               Prepared Statement by Jeh Charles Johnson
    Mr. Chairman and Senator McCain, thank you for the opportunity to 
testify here today.
    I also thank this committee for taking the initiative, on a 
bipartisan basis, to seek reform of military commissions. In his speech 
on May 21 at the National Archives, President Obama called for the 
reform of military commissions, and pledged to work with Congress to 
amend the Military Commissions Act. So, speaking on behalf of the 
administration, we welcome the opportunity to be here today, and to 
work with you on this important initiative.
    Military commissions can and should contribute to our national 
security by becoming a viable forum for trying those who violate the 
law of war. By working to improve military commissions to make the 
process more fair and credible, we enhance our national security by 
providing the government with effective alternatives for bringing to 
justice those international terrorists who violate the law of war.
    In May, the administration announced five changes to the rules for 
military commissions that we believe go a long way towards improving 
the process. (I note that those changes were developed initially within 
the Defense Department, in consultation with both military and civilian 
lawyers, and have the support of the Military Department 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). My Defense Department colleagues and I have had an 
opportunity to review the language this committee has included in the 
National Defense Authorization Act, and it is our basic view that the 
committee has identified virtually all of the same elements we believe 
are important to further improve the military commissions process. We 
are confident that through close cooperation between the administration 
and Congress, reformed military commissions can emerge from this effort 
as a fully legitimate forum, one that allows for the safety and 
security of participants, for the presentation of evidence gathered 
from the battlefield that cannot always be effectively presented in 
Federal court, and for the just resolution of cases alleging violations 
of the law of war.
    There are several changes to the Military Commissions Act reflected 
in the proposed legislation which I would like to highlight here, and 
which the administration supports:
    First, consistent with the rules changes approved by the Secretary 
of Defense and submitted to Congress in May, the legislation codifies a 
ban on the use in court of statements that were obtained by 
interrogation methods that amount to cruel, inhuman, or degrading 
treatment. In my view, this change is a big one. The most prominent 
criticism we hear of the current Military Commissions Act is that it 
permits the use of such statements, if obtained before December 30, 
2005. The statutory change which eliminates this possibility--by 
itself--will go a long way towards enhancing the legitimacy and 
credibility of commissions.
    Second, I note that the legislation amends current law to clarify 
the government's obligations to disclose exculpatory evidence to the 
accused, including evidence that would tend to impeach the credibility 
of a government witness, or serve as mitigation evidence at time of 
sentencing. This clarification of the government's obligations would be 
consistent with the obligations prosecutors have now in civilian 
courts.
    Third, the legislation would modify the rules on hearsay evidence, 
more closely resembling the rules used in civilian courts and in 
courts-martial.
    Fourth, the legislation codifies our rules change to provide the 
accused with more latitude in the selection of military defense 
counsel, again making commissions' rules closer to those in courts-
martial.
    Fifth, the legislation discontinues the use of the phrase 
``unlawful enemy combatant.'' We in the administration, effective March 
13, have also discontinued using the phrase in our court filings 
identifying who we believe we have the authority to detain at 
Guantanamo.
    The administration supports these changes to existing law, though 
you will note that we prefer somewhat different language in several 
instances. As I said before, we believe that reformed military 
commissions can and should contribute to national security by affording 
a venue for bringing to justice those who violate the law of war, and 
for doing so in a manner that reflects American values of justice and 
fairness. We believe these reforms serve that purpose.
    When considering this legislation, the administration asks that 
Congress also consider the following:
    First, in section 948r, concerning statements of the accused that 
can be admitted at trial, we ask that you consider the express 
incorporation of a ``voluntariness'' standard that, consistent with 
current law, takes account of the unique challenges and circumstances 
of the battlefield setting. We do not believe that soldiers on a 
battlefield should be required or even encouraged to provide Miranda-
like warnings to those they capture--and we note that the current 
legislation expressly states that Article III1 of the Uniform Code of 
Military Justice is not applicable to military commissions. Article 
III1 requires Miranda-like warnings prior to official questioning of 
servicemembers regarding alleged crimes.
    The essential mission of our Nation's military is to capture or 
kill the enemy, not to engage in evidence collection for eventual 
prosecution. However, in both American civilian courts and courts-
martial, statements of an accused are normally admitted only in the 
event they are found to be ``voluntary.'' There is a concern that, as 
military commissions prosecutions progress, military commission judges 
and courts may apply this standard without taking adequate account of 
the critical circumstances. Thus, rather than jeopardize future 
prosecutions and convictions because a statement was admitted at trial 
that was not considered ``voluntary,'' the administration believes we 
should specifically codify a standard to assess voluntariness that, 
consistent with current law, accounts for the realities of military 
operations. This will decrease the likelihood that combat objectives 
may be confused with a law enforcement mission, while ensuring that 
valid convictions before military commissions will be sustained on 
appeal.
    Second, we note that the legislation incorporates certain of the 
classified evidence procedures currently applicable in courts-martial, 
where there is relatively little precedent and practice regarding 
classified information. We, in the administration, believe that further 
work could be done to codify the protections of classified evidence, in 
a manner consistent with the protections that now exist in Federal 
civilian courts. We believe that those protections would work better to 
protect classified information, while continuing to ensure fairness and 
providing a stable body of precedent and practice for doing so.
    Third, concerning hearsay, while welcoming the committee's further 
regulation of the use of such evidence, we in the administration 
recommend somewhat different language for achieving this result that we 
look forward to discussing in more detail.
    Fourth, we look forward to working with Congress to ensure that the 
offenses that may be prosecuted in a military commission are consistent 
with the law of war. We note that section 950p of the Military 
Commissions Act contains a statement recognizing that the offenses 
codified by that Act are ``declarative of existing law,'' and ``do not 
preclude trial for crimes that occurred before enactment'' of the law. 
The committee replaced the language currently in section 950p with 
similar, but not identical, language. The administration supports this 
type of statement, though we prefer the existing language in section 
950p. I note also that the committee bill retains the offense of 
providing material support for terrorism. After careful study, the 
administration has concluded that appellate courts may find that 
``material support for terrorism''--an offense that is also found in 
Title 18--is not a traditional violation of the law of war. The 
President has made clear that military commissions are for law of war 
offenses. We thus believe it would be best for material support to be 
removed from the list of offenses triable by military commission, which 
would fit better with the statute's existing declarative statement.
    We also believe that conspiracy, unlike material support, can in 
many cases be properly charged in military commissions as a traditional 
law of war offense, and we welcome the retention of that offense in the 
committee bill. As a former prosecutor, it is my belief that by 
definition, many material support cases are also conspiracy cases.
    With the removal of material support, we are supportive of 
recognizing the law of war origins of all codified offenses.
    Fifth, we agree with the committee that the scope of appellate 
review must be expanded to include review of factual as well as legal 
matters. However, we believe that an appellate court paralleling that 
of the service Courts of Criminal Appeals under Article 66 of the 
Uniform Court of Military Justice, with additional review by the U.S. 
Court of Appeals for the DC Circuit, would best achieve the legitimacy 
and credibility we all seek.
    In conclusion, I thank you again for taking the initiative in this 
important area of national security, and I look forward to your 
questions.

    Chairman Levin. Thank you very much, Mr. Johnson.
    Next is the Assistant Attorney General for National 
Security Division (NSD) at DOJ, David Kris.
    Mr. Kris.

 STATEMENT OF HON. DAVID S. KRIS, ASSISTANT ATTORNEY GENERAL, 
       NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE

    Mr. Kris. Thank you, Mr. Chairman, Senator McCain, and 
members of the committee. I come from DOJ and this is my first 
appearance before this committee. I thought I might begin just 
by briefly explaining how I think my work relates to that of 
the committee with respect to military commissions.
    NSD, which I lead, combines all of DOJ's major national 
security personnel and functions. Our basic mission is to 
protect national security consistent with the rule of law and 
civil liberties. In keeping with that, we support all lawful 
methods for achieving that protection, including but not 
limited to prosecution in an Article III court or before a 
military commission.
    In the last administration, NSD assembled a team of 
experienced Federal prosecutors drawn from across the country 
to assist the DOD Office of Military Commissions (OMC) and 
litigate cases at Guantanamo Bay, Cuba (GTMO). I can assure you 
that assistance will continue. The man who led that team for 
NSD is now my deputy and a member of that team has since been 
recalled to active duty and is now the lead prosecutor at OMC.
    As the President explained, when prosecution is feasible 
and otherwise appropriate we will prosecute terrorists in 
Federal court or in military commissions. In the 1990s, I 
prosecuted a group of violent extremists and, like their more 
modern counterparts, they engaged in extensive ``law-fare,'' 
which made the trials challenging. But the prosecution 
succeeded, not only because it incarcerated these defendants, 
some of them for a very long time indeed, but also because it 
deprived them of any shred of legitimacy.
    Military commissions can help do the same for those who 
violate the law of war--not only detain them for longer than 
might otherwise be possible under the law of war, but also 
brand them as illegitimate war criminals. To do this 
effectively, however, the commissions themselves must first be 
reformed, and the committee's bill is a tremendous step in that 
direction. As you know from my written testimony and that of 
Mr. Johnson and Admiral MacDonald, the administration 
appreciates the bill very much and supports much of it. You 
have made an incredibly valuable contribution with the bill.
    I want to thank you again for inviting me here and I look 
forward to answering your questions.
    [The prepared statement of Mr. Kris follows:]
                 Prepared Statement by Hon. David Kris
    Chairman Levin, Ranking Member McCain, and members of the Armed 
Services Committee, thank you for the opportunity to discuss 
legislation that would reform the Military Commissions Act (MCA) of 
2006. A task force established by the President is actively reviewing 
the detainees held at Guantanamo Bay to determine whether they can be 
prosecuted or safely transferred to foreign countries. As the President 
stated in his May 21 speech at the National Archives, where feasible we 
plan to prosecute in Federal court those detainees who have violated 
our criminal law. Prosecution is one way--but only one way--to protect 
the American people, and the Federal courts have proven on many 
occasions to be an effective mechanism for dealing with dangerous 
terrorists.
    The President has also made clear that he supports the use of 
military commissions to prosecute those who have violated the laws of 
war, provided that necessary reforms are made. Military commissions 
have a long history in our country dating back to the Revolutionary 
War. Properly constructed, they take into account the reality of 
battlefield situations and military exigencies, while affording the 
accused due process. The President has pledged to work with Congress to 
ensure that the commissions are fair, legitimate, and effective, and we 
are all here today to help fulfill that pledge. I thank this Committee 
for leading the effort to develop legislation on this important 
national security issue.
    On May 15, the administration announced five rule changes as a 
first step toward meaningful reform. These rule changes prohibited the 
admission of statements obtained through cruel, inhuman, and degrading 
treatment; provided detainees greater latitude in the choice of 
counsel; afforded basic protections for those defendants who refuse to 
testify; reformed the use of hearsay by putting the burden on the party 
trying to use the statement; and made clear that military judges may 
determine their own jurisdiction. Each of these changes enhances the 
fairness and legitimacy of the commission process without compromising 
our ability to bring terrorists to justice.
    These five rule changes were an important first step. This 
committee has now taken the next step by drafting legislation to enact 
more extensive changes to the MCA on a number of important issues. The 
administration believes the committee's bill identifies many of the key 
elements that need to be changed in the existing law in order to make 
the commissions an effective and fair system of justice. We think the 
bill is a good framework to reform the commissions, and we are 
committed to working with you on it. With respect to some issues, we 
think the approach taken by the committee is exactly right. In other 
cases, we believe there is a great deal of common ground between the 
administration's position and the provision adopted by the committee, 
but we would like to work with you because we have identified a 
somewhat different approach. Finally, there are a few additional issues 
in the MCA that the committee's bill has not modified that we think 
should be addressed. I will outline some of the most important issues 
briefly today.
    First, the committee's bill would bar admission of statements 
obtained by cruel, inhuman, or degrading treatment. We support this 
critical change so that neither statements obtained by torture nor 
those obtained by other unlawful abuse may be used at trial.
    However, we believe that the bill should also adopt a voluntariness 
standard for the admission of statements of the accused--albeit a 
voluntariness standard that takes account of the challenges and 
realities of the battlefield and armed conflict. To be clear, we do not 
support requiring our soldiers to give Miranda warnings to enemy forces 
captured on the battlefield, and nothing in our proposal would require 
this result, nor would it preclude admission of voluntary but non-
Mirandized statements in military commissions. Indeed, we note that the 
current legislation expressly makes Article III1 of the Uniform Code of 
Military Justice (UCMJ) inapplicable to military commissions, and we 
strongly support that. There may be some situations in which it is 
appropriate to administer Miranda warnings to terrorist suspects 
apprehended abroad, to enhance our ability to prosecute them, but those 
situations would not require that warnings be given by U.S. troops when 
capturing individuals on the battlefield. Voluntariness is a legal 
standard that is applied in both Federal courts and courts martial. It 
is the administration's view that there is a serious risk that courts 
would hold that admission of involuntary statements of the accused in 
military commission proceedings is unconstitutional. Although this 
legal question is a difficult one, we have concluded that adopting an 
appropriate rule on this issue will help us ensure that military judges 
consider battlefield realities in applying the voluntariness standard, 
while minimizing the risk that hard-won convictions will be reversed on 
appeal because involuntary statements were admitted.
    Second, the committee has included a provision to codify the 
Government's obligation to provide the defendant with exculpatory 
evidence. We support this provision as well; we think it strikes the 
right balance by ensuring that those responsible for the prosecution's 
case are obliged to turn over exculpatory evidence to the accused, 
without unduly burdening every Government agency with unwieldy 
discovery obligations.
    Third, the committee bill restricts the use of hearsay, while 
preserving an important residual exception for certain circumstances 
where production of direct testimony from the witness is not available 
given the unique circumstances of military and intelligence operations, 
or where production of the witness would have an adverse impact on such 
operations. We support this approach, including both the general 
restriction on hearsay and a residual exception, but we would propose a 
somewhat different standard as to when the exception should apply, 
based on whether the hearsay evidence is more probative than other 
evidence that could be procured through reasonable efforts.
    Fourth, we agree with the committee that the rules governing use of 
classified evidence need to be changed, but we would do so in a fashion 
that is more similar to the system provided in the Classified 
Information Procedures Act (CIPA), as it has been interpreted by 
Federal courts. While CIPA may need to be revised and updated in 
important respects to address terrorism cases more effectively, we 
believe it has generally worked well in both protecting classified 
information and ensuring fairness of proceedings. Importing a modified 
CIPA framework into the statute will provide certainty and 
comprehensive guidance on how to balance the need to protect classified 
information with the defendant's interests. It will also allow military 
judges to draw on the substantial body of CIPA case law and practice 
that has been developed over the years.
    We are concerned with a provision in the committee bill that allows 
the use of traditional CIPA practices--the use of deletions, 
substitutions, or admissions--only after an agency head or original 
classifying authority has certified that the evidence has been 
declassified to the maximum extent possible. This provision has no 
analogue in CIPA or the UCMJ, and it suggests a potentially burdensome 
process of declassification where the traditional alternatives would be 
more efficient and would adequately protect the rights of the accused. 
We also believe there are a number of elements of CIPA law and practice 
that would substantially improve the way classified information issues 
are dealt with by the commissions, including for example establishing 
clear guidance on the propriety of ex parte hearings on classified 
information issues and setting substantive standards for provision of 
classified evidence to the defense in discovery. We would be happy to 
work with you and your staff on these issues.
    Fifth, we share the objective of the committee to empower appellate 
courts to protect against errors at trial by expanding their scope of 
review, including review of factual as well as legal matters. We also 
agree that civilian judges should be included in the appeals process. 
However, we think an appellate structure that is based on the service 
Courts of Criminal Appeals under Article 66 of the UCMJ, with 
additional review by the U.S. Court of Appeals for the District of 
Columbia Circuit under traditional standards of review, is the best way 
to achieve this result.
    There are two additional issues I would like to highlight today 
that are not addressed by the committee bill that we believe should be 
considered. The first is the offense of material support for terrorism 
or terrorist groups. While this is a very important offense in our 
counterterrorism prosecutions in Federal court under title 18 of the 
U.S. Code, there are serious questions as to whether material support 
for terrorism or terrorist groups is a traditional violation of the law 
of war. The President has made clear that military commissions are to 
be used only to prosecute law of war offenses. Although identifying 
traditional law of war offenses can be a difficult legal and historical 
exercise, our experts believe that there is a significant risk that 
appellate courts will ultimately conclude that material support for 
terrorism is not a traditional law of war offense, thereby reversing 
hard-won convictions and leading to questions about the system's 
legitimacy. However, we believe conspiracy can, in many cases, be 
properly charged consistent with the law of war in military 
commissions, and that cases that yield material support charges could 
often yield such conspiracy charges. Further, material support charges 
could be pursued in Federal court where feasible.
    Finally, we think the bill should include a sunset provision. In 
the past, military commissions have been associated with a particular 
conflict of relatively short duration. In the modern era, however, the 
conflict could continue for a much longer time. We think after several 
years of experience with the commissions, Congress may wish to 
reevaluate them to consider whether they are functioning properly or 
warrant additional modification.
    In closing, I want to emphasize again how much the administration 
appreciates the committee's leadership, and the very thoughtful bill it 
has drafted. While there may be some areas of the bill on which we 
disagree with the approach taken or the specific language adopted, we 
think this bill represents a major step forward and we are optimistic 
that we can reach agreement on the important details. We would welcome 
the opportunity to conduct further discussions.
    Thank you again for the opportunity to testify today, and I will be 
happy to answer any questions you have.

    Chairman Levin. Thank you very much, Mr. Kris.
    Admiral MacDonald.

   STATEMENT OF VADM BRUCE E. MacDONALD, USN, JUDGE ADVOCATE 
                  GENERAL, UNITED STATES NAVY

    Admiral MacDonald. Thank you, Mr. Chairman, Senator McCain, 
members of the committee. Thank you very much for providing me 
with the opportunity to present my personal views of section 
1031 of the NDAA.
    In 2006 when this committee was working to establish a 
permanent framework for military commissions through the MCA, I 
had the opportunity to share my views with the Senate Judiciary 
Committee and the House Armed Services Committee (HASC). At 
that time I recommended that a comprehensive framework for 
military commissions should clearly establish the jurisdiction 
of the commissions, set baseline standards of structure, 
procedure, and evidence consistent with U.S. law and the law of 
war, and prescribe substantive offenses. I stated that the UCMJ 
should be used as a model for the commissions process.
    I am pleased to say that this committee's legislative 
proposal addresses the concerns I had in 2006 following the 
enactment of the MCA. Overall, I believe that this legislation 
establishes a balanced framework to provide important rights 
and protections to an accused, while also providing the 
government with the means of prosecuting alleged alien 
unprivileged enemy belligerents.
    In reviewing your legislation, I would identify two areas 
where additional clarity would be most helpful to our 
practitioners. First, the legislation relies upon the current 
courts-martial rules of evidence to address the handling of 
classified information. Unfortunately, the cognizant military 
rule, MRE-505, does not have a very robust history. Over time 
we have discovered that, while MRE-505 has some benefits, the 
military rules on the use of classified information fall short 
of our overall goals.
    On the other hand, for over 20 years Article III courts 
have relied upon the Classified Information Procedures Act 
(CIPA). In light of the history and experience of CIPA, as well 
as the practical difficulties with the use of MRE-505 to date, 
I recommend using a modified CIPA process as a touchstone for 
military commissions going forward.
    Second, I agree with the provision calling for the military 
judge to evaluate the admissibility of allegedly coerced 
statements using a totality of the circumstances test to 
determine reliability. However, to assist our practitioners in 
the field, I recommend that you develop a list of 
considerations to be evaluated in making this determination. 
Those considerations should include: the degree to which the 
statement is corroborated; the indicia of reliability in the 
statement itself; and to what degree the will of the person 
making the statement was overborne.
    Once again, thank you, Mr. Chairman, for the opportunity to 
testify and I look forward to answering your questions.
    [The prepared statement of Admiral MacDonald follows:]
            Prepared Statement by VADM Bruce MacDonald, USN
    Chairman Levin, Ranking Member McCain, and members of the Armed 
Services Committee, thank you very much for giving me the opportunity 
to testify today on the subject of military commissions.
    In 2006, when this committee was working to establish a permanent 
framework for military commissions through the Military Commissions 
Act, I had the opportunity to share my views with the Senate Judiciary 
Committee and House Armed Services Committee. At that time, I 
recommended that a comprehensive framework for military commissions 
should clearly establish the jurisdiction of military commissions, set 
baseline standards of structure, procedure, and evidence consistent 
with U.S. law and the law of war, and prescribe substantive offenses. I 
stated that the Uniform Code of Military Justice (UCMJ) should be used 
as a model for the commissions process. Although our experiences of the 
last few years have shaped my perspectives on some of the rules that 
should apply to military commissions, I am pleased to say that this 
committee's legislative proposal addresses the concerns I had in 2006. 
Overall, I believe that this legislative proposal establishes a 
balanced framework to provide important rights and protections to an 
accused while also providing the government with the means of 
prosecuting alleged alien unprivileged enemy belligerents.
    This legislation provides each accused with critical legal 
protections. These include:

         The right against self incrimination, the right to 
        compulsory process and a reasonable opportunity to obtain 
        witnesses and evidence, along with an expanded right to 
        exculpatory, as well as mitigating and impeachment evidence.
         The right to be present during all sessions of trial 
        when evidence is to be offered and the right to confront 
        witnesses.
         The right to self representation and the right to be 
        represented by detailed military counsel, an expanded right to 
        counsel of the accused's own choice if reasonably available, 
        and the right to civilian counsel at the accused's expense.
         The right to appellate review, to include a review of 
        factual sufficiency identical to the type of review currently 
        conducted for courts-martial under the UCMJ.

    Prosecution of alien unprivileged enemy belligerents has proven a 
challenge over the last few years. Your legislation establishes a more 
balanced framework to prosecute accused by modeling the procedures used 
in general courts-martial under the UCMJ while recognizing the 
exigencies that exist on the battlefield in time of war.
    Specific highlights of the legislation that I support include:

         A requirement that the government prove its case 
        beyond a reasonable doubt.
         Protection against double jeopardy.
         A requirement that the proponent of hearsay evidence 
        establish its reliability to an extent required by rules long 
        recognized in trials by general courts-martial.
         Exclusion of statements obtained through the use of 
        torture or cruel, inhuman or degrading treatment. For other 
        statements, permits the military judge to determine 
        admissibility in the interests of justice based upon the 
        reliability of the statement under a totality of the 
        circumstances analysis.
         Establishes clearly defined criminal offenses.
         Continues to recognize and rely upon an independent 
        trial judiciary that has been the hallmark of military trials 
        under the UCMJ.

    In short, this legislation strikes the right balance between 
affording an accused the judicial guarantees recognized as 
indispensable by civilized people and our national security concerns.
    In reviewing your legislation, I believe that there are two areas 
in which our practitioners would benefit from some additional clarity.
         Section 949d provides for the use of rules of evidence 
        in trials by general courts-martial in the handling of 
        classified evidence. This is consistent with our overall desire 
        to use those procedures found within the UCMJ and the Manual 
        for Courts-Martial whenever possible. However, experience has 
        shown that practitioners struggle with a very complex and 
        unclear rule within the Military Rules of Evidence. The 
        military rules do not have a robust source of informative or 
        persuasive case law. Frankly, prosecutions using Military Rule 
        of Evidence 505 are rare. In developing the rules for the 
        handling of classified material during a military commission, 
        it would be more prudent to rely upon the Classified 
        Information Procedures Act (CIPA) used in Article III courts as 
        a starting point. The use of CIPA as a touchstone for drafting 
        provisions for use in the litigation of classified evidence in 
        military commissions, complete with the definitional guidance 
        that has developed over more than 20 years of jurisprudence in 
        Federal district courts, would provide practitioners with 
        additional clarity in the area of classified evidence.
         Section 948r provides a test for determining the 
        admissibility of allegedly coerced statements. I recommend you 
        include a list of considerations a military judge should use in 
        evaluating the reliability of those statements. Those 
        considerations should include the degree to which the statement 
        is corroborated, the indicia of reliability within the 
        statement itself, and whether and to what degree the will of 
        the person making the statement was overborne.

    Once again, thank you very much for this opportunity to share my 
personal views on your legislation. I look forward to answering your 
questions and working with the committee on this important endeavor.

    Chairman Levin. Thank you very much, Admiral MacDonald.
    As the Judge Advocate General of the U.S. Navy, your 
testimony is obviously very, very important to us. You 
emphasize that you're speaking in a personal capacity here 
today and we understand that. We would ask, however, if there 
are some differences between the uniformed Navy and your own 
personal views. We will ask the Secretary if there are any such 
differences. We assume Mr. Johnson is speaking for the entire 
DOD, but since you put it that way we will make that inquiry of 
the Secretary of the Navy.
    Let's try a 6-minute round for questioning here. We have 
not only two panels, but we also have a room which is reserved 
for some other purpose previously at 12:30. I hope we'll have 
enough time. We'll try a 6-minute first round.
    Let me ask you first, Mr. Johnson. I quoted from the Hamdan 
case in my opening remarks, saying that the court in Hamdan 
said that ``the regular military courts in our system are the 
courts-martial established by congressional statutes,'' but 
they also said that a military commission can be regularly 
constituted if there's a practical need that explains 
deviations from court-martial practice. We attempted in our 
language to do exactly that.
    My question first of you is, in your view does our bill 
conform to the Hamdan standards?
    Mr. Johnson. Senator, as you noted, Hamdan was at a time 
that the MCA of 2006 did not exist, as I recall. But the 
holding of Hamdan was that military commissions--and I'm not 
going to get this exactly right--but that military commissions 
should depart from UCMJ courts only in situations of evident 
practical need.
    The proposed legislation, in our view definitely brings us 
closer to the UCMJ model and the circumstances under which the 
military commissions contemplated by this bill and UCMJ courts 
differ are in our judgment circumstances that are necessary 
given the needs here. For example, there is no Miranda 
requirement imposed by this legislation. Article III1 of the 
UCMJ is specifically excluded from application here. Article 
III1 is what calls for Miranda warnings in UCMJ circumstances.
    The legislation also takes what I believe is a very 
appropriate and practical approach to hearsay. As you noted in 
your opening remarks, Mr. Chairman, the burden is no longer on 
the opponent to demonstrate that hearsay should be excluded. 
There is a notice requirement in the proposed legislation and 
if the proponent of the hearsay can demonstrate reliability and 
materiality and that the declarant is not available as a 
practical matter, given the unique circumstances of military 
operations and intelligence operations, the hearsay could be 
admitted.
    Military commissions are fundamentally different from UCMJ 
courts in that most often what you have in military justice is 
the punishment of a member of the U.S. military for some 
violation of the UCMJ, very often directed--of some sort of 
domestic nature. Military commissions are obviously for 
violations of the law of war. They are very often prosecuting 
people captured on the battlefield and, just given the nature 
of the way evidence is collected, there needs to be a 
recognition that the military can't be expected to change how 
it does business to engage in evidence collection on the 
battlefield.
    The way this legislation deals with the hearsay rules I 
think is quite appropriate and is certainly an example of 
evident practical need.
    I would say the same when it comes to the rules on 
authenticity set forth in this proposed legislation. There is 
not a requirement like you would see in UCMJ courts or in 
civilian courts for what we in civilian courts would know as a 
strict chain of custody. There is a more practical approach, 
given the needs of military operations and intelligence 
collection.
    Chairman Levin. Can I interrupt you there because of our 
short time. If you could expand for the record any places where 
you believe we fall short of complying with the Hamdan 
standards, I'd appreciate that if you could do that for the 
record.
    Mr. Johnson. Yes, I'd be happy to.
    Chairman Levin. You could expand your answer, too.
    Mr. Johnson. Sorry for going on so long, Senator.
    Chairman Levin. We only have 6 minutes.
    Mr. Kris, let me ask you, representing DOJ: In your 
judgment, do you believe that this bill as drafted, that these 
provisions conform to the Hamdan standards?
    Mr. Kris. Yes. To the extent that the uniformity principle 
from Hamdan applies to a statutorily created system of 
commissions, I think it is met here. Jeh mentioned some of the 
differences and I think his justifications make sense. We have 
some recommendations for change, but those aren't rooted in the 
uniformity principle at all.
    Chairman Levin. While I'm asking you questions, it's been 
argued that it's not appropriate for DOD to prosecute 
terrorists. Do you believe that it is appropriate for DOD to 
prosecute alleged terrorists with these military commissions, 
instead of DOJ doing all of the prosecuting in Article III 
courts?
    Mr. Kris. Yes. I think the President made clear in his May 
21 speech that we will prosecute in Federal court and where 
there is a law of war violation, we will also prosecute under a 
reformed system of military commissions, we will also prosecute 
law of war violations in those commissions. I think the 
President said it best when he said that we need to be using 
all instruments of national power against this adversary, and 
that includes military commissions.
    Chairman Levin. Thank you. My time has expired.
    Senator McCain.
    Senator McCain. Thank you, Mr. Chairman.
    Mr. Johnson and Mr. Kris, if trials were held in Guantanamo 
or the United States would there be any difference in the 
proceedings?
    Mr. Johnson. Senator, if military commissions were held in 
the continental United States I think that we have to carefully 
consider the possibility that some level of due process may 
apply that the courts have not determined applies now. I think 
that that assessment has to be carefully evaluated and 
carefully made.
    Senator McCain. What you're saying is that you believe 
there could be some significant difference in procedure if the 
trials were held in Guantanamo or in the United States of 
America?
    Mr. Johnson. I'm not sure I would be prepared to say 
significant difference, Senator.
    Senator McCain. I think it would be important for this 
committee to know what your view is. It might have something to 
do with the way that we shape legislation. If they're going to 
have all kinds of additional rights if they are tried in the 
United States of America as opposed to Guantanamo, I think that 
the committee and the American people should know that.
    Mr. Johnson. One of the things that I mentioned in my 
prepared statement, Senator, is that when it comes to the 
admissibility of statements the administration believes that a 
voluntariness standard should apply that takes account of the 
realities of military operations. We think that is something 
that due process may require, particularly if the commissions 
come to the United States, that the courts may impose a 
voluntariness standard.
    Senator McCain. I hope that you and Mr. Kris will provide 
for the record what you think the differences in the process 
would be as to the location of those trials. I think it's very 
important. Certainly it is to me.
    Mr. Kris, in your statement on page 2 you said: ``It's the 
administration's view that there is a serious risk that courts 
would hold the admission of involuntary statements of the 
accused in military commission proceedings is 
unconstitutional.'' Does that infer that these individuals have 
constitutional rights?
    Mr. Kris. Yes.
    Senator McCain. They do? What are those constitutional 
rights of people who are not citizens of the United States of 
America, who were captured on a battlefield committing acts of 
war against the United States?
    Mr. Kris. Our analysis, Senator, is that the due process 
clause applies to military commissions and imposes a 
constitutional floor on the procedures that would govern such 
commissions, including against enemy aliens.
    Senator McCain. What would those be, Mr. Kris?
    Mr. Kris. They'd be a number of due process-based rights, 
one of which Mr. Johnson just mentioned, is we think there is a 
serious risk that courts will find that a voluntariness 
standard is required by the due process clause for admission 
of----
    Senator McCain. You are saying that these people who are in 
Guantanamo, were part of September 11 or have committed acts of 
war against the United States, are entitled to constitutional 
rights of the Constitution of the United States of America?
    Mr. Kris. Within the framework that I just described, I 
think the answer is yes. The due process clause guarantees and 
imposes some requirements--that's the way I think I would put 
it--on the conduct and rules governing these commissions.
    Senator McCain. Well, that's very interesting because I had 
never proceeded under that assumption in drafting this 
legislation and previous legislation. The fact is that they are 
entitled to Geneva protections under the Geneva Conventions, 
which apply, and the rules of war. I did not know nor know of 
any time in American history where enemy combatants were given 
rights under the U.S. Constitution.
    Mr. Kris. I do think, Senator, there's a difference between 
their rights--for example, they would not be entitled to the 
rights under Geneva for prisoners of war because these are----
    Senator McCain. No, their rights under the treatment of 
enemy combatants, the Geneva Conventions Common Article III.
    Mr. Kris. Yes. Okay, thank you.
    Senator McCain. We now have established that it is the view 
of the administration that enemy combatants or belligerents, 
whatever new name you'd like to call them, are now entitled to 
the constitutional rights of U.S. citizens?
    Mr. Kris. Not at all. I don't think that that's right. I 
mean, both in terms of how we would describe this as a due 
process requirement that applies to the commissions even if 
they are prosecuting enemy aliens; and also I don't think it's 
right to equate the rights or the rules that are required for 
commission proceedings against aliens necessarily with those 
that would apply against U.S. citizens. Those might come out 
differently. This is an extremely complicated area of law.
    Senator McCain. It certainly is, Mr. Kris. But your 
statement for the record was ``It's the administration's view 
that there are serious risks that courts would hold that 
admission of involuntary statements of the accused in military 
commission proceedings is unconstitutional.''
    Mr. Kris. Yes.
    Senator McCain. Therefore it means that they have some 
constitutional rights.
    Mr. Chairman, I know that there are other questions of the 
witnesses, and if there's a second round maybe I'll take 
advantage of it. Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator McCain.
    Senator Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman. Thanks to the 
witnesses.
    Mr. Johnson, let me begin with an expression of 
appreciation for the process that the administration has gone 
through to come to the point that you're at today. For me as 
we've gone through this deliberation about how to treat what I 
call prisoners of war, that is those suspected of violating the 
laws of war, it seems to me that we've had a hard time putting 
this in the context of our own sets of fairness related to the 
unique war we're in.
    Obviously, this is a war against terrorists. They don't 
fight in uniform. They don't fight, for the most part, for 
nation states. This war may go on for a long time. Nonetheless, 
it seemed to me along the way that there was no sense to those 
who are arguing that these individuals apprehended for 
violations of the law of war should be tried in our Federal 
courts. In the sense that Senator McCain has just said, I don't 
think they have the constitutional rights that we associate 
with American citizenship. Also they have not in my opinion 
violated Federal criminal law. They've violated the laws of 
war.
    I know that there were some who expected that the Obama 
administration's review would end up recommending that all of 
these cases go to Federal court, and I appreciate the fact that 
you have not come to that conclusion, although I have some 
questions about some of the subparts of what you've done. I 
think this is really a very significant, very open-minded, very 
fair, very ultimately historic process you went through and 
reached I think generally speaking the right balance, and I 
appreciate it.
    You were asked just a moment ago whether you thought that 
the military commission provisions of the NDAA were within the 
Hamdan ruling of the Supreme Court. I want to ask you whether 
your judgment is that the military commission provisions of the 
NDAA are within the requirements of the Geneva Convention?
    Mr. Johnson. Yes, Senator, with room to spare, yes. One of 
my personal objectives, frankly, is that we devise a system 
that comports with the Geneva Conventions as well as Hamdan, as 
well as applicable U.S. laws. I think the answer to your 
question is yes, sir.
    Senator Lieberman. I thank you for that answer. I agree 
with you, and I particularly appreciate the clause you added, 
which is that the military commission provisions of the NDAA 
are not only within the requirements of the Geneva Conventions, 
but, as you said, with room to spare. I agree that we hold 
ourselves to very high standards, sometimes standards that are 
so high that they are unrealistic and in some sense self-
destructive in the context of the war we're in.
    I agree with you that what we've provided for in this 
legislation of this committee is well within the Geneva 
Conventions.
    Let me ask you a specific question that came up in the last 
exchange and testimony of Mr. Kris. In light of the judgment of 
the Supreme Court in the Hamdan case that certainly to me 
suggested approval of the U.S. Court of Appeals for Armed 
Forces (CAAF) as the place that the accused here can appeal 
from a judgment of the military commission--and the CAAF is not 
a standard Article III Federal court, as you well know. Why is 
the administration seeking a right of appeal from the military 
commissions to Article III Federal courts? Mr. Kris or Mr. 
Johnson?
    Mr. Johnson. Senator, let me take a stab at that initially 
at least. First, we agree and endorse the position expressed in 
the bill that it should be an expanded scope of review, review 
of the facts as well as the law. Our view is that we should 
retain the Court of Military Commission's review and then have 
appeal directly to the DC Circuit. That would be in effect a 
four-tiered level of review, beginning with the trial court, 
and in our view would resemble in many respects UCMJ justice 
because you have that intermediate level of appellate court, 
rather than an appeal directly from the military commission's 
trial level court to the CAAF. It would be our preference to 
have an appeal directly to the DC Circuit.
    But we agree with the concept of the expanded scope of 
review.
    Senator Lieberman. Is it fair to say, then, that the 
administration's suggested changes in this regard are not 
rooted in the Supreme Court's uniformity principles as stated 
in Hamdan, but they're rooted in some other requirement or some 
sense of the administration about what's fair and just here?
    Mr. Johnson. I think that's a fair statement, Senator.
    Senator Lieberman. Let me ask you just to comment, to go 
back to what I said at the beginning and just describe in the 
time that's left in my questioning period, why you reached the 
judgment on behalf of the administration or why the President 
ultimately reached the judgment that these cases that we're 
talking about should not primarily go to our Federal courts?
    Mr. Johnson. As you probably know, the President signed an 
Executive order mandating a review of each detainee's 
situation. That review is ongoing and, as you've seen in at 
least one instance, a detainee who had a pending military 
commissions case against him was transferred for prosecution in 
the Southern District of New York.
    I think it is fair to say that what the President and the 
administration have concluded is at least some of these 
detainees should be prosecuted for violations of the laws of 
war, that military commissions justice is the more appropriate 
forum, dependent upon a variety of factors. In some situations, 
you have a situation where a detainee has violated both Title 
18 and the laws of war, and we want to retain military 
commissions as a viable and realistic option. Whether almost 
everyone or everyone who is now a pending military commissions 
defendant will stay that way, I couldn't say. The review is 
ongoing.
    Senator Lieberman. Thanks.
    I want to just close the loop on the previous question, 
because my time is up, which is that I think the committee has 
made the right judgment in saying that the right of appeal from 
the military commissions should be to the CAAF and that there 
shouldn't be an appeal to the Circuit Court for the District.
    Thank you.
    Chairman Levin. Thank you, Senator Lieberman.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman. I'd like to, one, 
compliment you and Senator McCain for trying to come up with a 
new bill. I think it would help the country if we could reform 
the process and I think we're very close to a bill that we all 
can be proud of.
    About the appeals, the main thing for the public to 
understand is that any verdict rendered in a military 
commission trial will work its way into the civilian courts. Is 
that correct?
    Mr. Johnson. Yes, sir.
    Senator Graham. No one will be imprisoned in this country 
based on a military commission verdict that does not have a 
chance to have their day in Federal court, civilian court?
    Mr. Johnson. Assuming they appeal, that's correct, yes, 
sir.
    Senator Graham. Okay. Now, when it comes to the idea of 
location, the courtroom at Guantanamo Bay is uniquely set up, I 
think, to do these trials. I would be interested to get your 
thoughts about how the location would matter. I'm not so sure, 
after the Supreme Court decisions treating Guantanamo Bay as an 
extension of the United States, that it would matter greatly. 
Like Senator McCain, I'd like to know how location would 
matter.
    Admiral MacDonald, one of the issues that we're grappling 
with is the ``material support for terrorism.'' I think I 
understand the administration's view that that is not a 
traditional charge under the law of armed conflict. But under 
the UCMJ, we incorporate the Assimilated Crimes Act (ACA). 
Could that doctrine be used here?
    Admiral MacDonald. Yes, sir. You could incorporate it in 
under Title 18 through the ACA into the UCMJ and it could be 
charged.
    Senator Graham. I think, Mr. Johnson, that gets back to 
your point. Some of these people can be charged under both sets 
of laws. Is that what you were trying to tell us?
    Mr. Johnson. Yes, sir.
    Senator Graham. Now, Mr. Kris, do you agree with that 
theory, that we could use the ACA to incorporate material 
support using a Title 18 offense?
    Mr. Kris. I think you could do that as a formal matter. 
There still remains the question whether material support 
historically was a law of war offense, under that label or a 
different label.
    Senator Graham. I totally agree with that debate. But if 
you were able to incorporate Title 18 offenses, that would 
resolve that issue, isn't that correct?
    Mr. Kris. It would, again to the extent that it's a viable 
law of war offense.
    Senator Graham. All right, thank you.
    Now, when it comes to evidentiary standards, are you 
familiar with The Hague procedures when they try international 
war criminals?
    Mr. Kris. I am not.
    Senator Graham. One thing I would suggest that you look at, 
I think our hearsay rules are much more restrictive, quite 
frankly. Do you agree with that, Admiral MacDonald?
    Admiral MacDonald. Yes, sir, I do. We talked about this in 
2006. We looked at the International Criminal Tribunal for 
Rwanda and for Yugoslavia, and both of those tribunals have 
very liberal hearsay rules.
    Senator Graham. When it comes to involuntariness, what kind 
of standard do they use in terms of admitting statements from 
the accused?
    Admiral MacDonald. It's the reliability of the statement.
    Senator Graham. The point I'm making to the committee is 
that if you compare our military commissions system, 
particularly the reformed version, to an international court 
trial at The Hague, we're much more, for lack of a better word, 
liberal in terms of providing due process and protections to 
the accused than you would get if you were going to The Hague. 
I have no problem with that, quite frankly. I think that's a 
good thing.
    Let's get back to what the courts are likely to look at in 
a military commission trial, Mr. Kris. I think the debate is a 
bit confusing. It's not so much whether the individual accused 
has a constitutional status as an American citizen, but the 
courts will look at these trials in terms of due process and 
they will make a judgment as to whether or not it meets some 
minimum standard expected of an American court; is that 
correct?
    Mr. Kris. That is essentially exactly what I was saying to 
the Senator.
    Senator Graham. I think that is correct. When you look at 
the history of military commissions, the World War II German 
saboteurs trials is not exactly the showcase you would want to 
use. Those trials were conducted in a matter of days from the 
time the evidence was received to the time judgment was 
rendered, and they passed scrutiny, but I think when we look 
back in time it's not something we would want to repeat. Is 
that your opinion?
    Mr. Kris. I think I essentially agree with what you just 
said, and I think Justice Scalia has referred to the Quirin 
case as not the court's finest hour. I think there is some 
question about whether you could apply those precedents 
straight on, given recent developments in the law.
    Senator Graham. Do you have a problem with the totality of 
the circumstances test if we fill in the blanks in terms of 
admission of statements?
    Mr. Kris. No, on the contrary, I think the totality of the 
circumstances test is the right test. Of course, the 
administration's position is that it should be used to 
determine voluntariness, albeit voluntariness that reflects the 
realities of a wartime situation. But I do think totality of 
the circumstances is what the judge would look at.
    Senator Graham. The final thought here is about the 
difference between an Article III trial and a military 
commission trial. One of the big concerns that we have as a 
Nation, Mr. Johnson, is what percentage of the Guantanamo Bay 
detainees do you believe will be held off the battlefield but 
never go to an Article III court or a military commission 
trial?
    Mr. Johnson. A percentage or a number is tough to say at 
this point, Senator. As I mentioned a moment ago, our review of 
these detainees is ongoing. I do think that we should all 
assume that for purposes of national security and the 
protection of the American people there will be at the end of 
this review a category of people that we in the administration 
believe must be retained for reasons of public safety and 
national security. They're not necessarily people that we'll 
prosecute.
    Senator Graham. Either the evidence is not the type you 
would take to a beyond a reasonable doubt trial or it has some 
national security implications.
    I'd just like to finish on this note. Admiral MacDonald, 
under domestic criminal law is there any theory that would 
justify an indefinite detention of a criminal suspect without a 
trial?
    Admiral MacDonald. In our own domestic law?
    Senator Graham. Right.
    Admiral MacDonald. Not that I know of, Senator.
    Senator Graham. In the military setting, is it a 
permissible behavior of a country to hold someone under the 
theory that they're a belligerent enemy combatant indefinitely 
if the evidence justifies that finding?
    Admiral MacDonald. Yes, sir, it is. That's a recognized 
principle of the law of war.
    Senator Graham. Do you agree with that, Mr. Johnson?
    Mr. Johnson. Yes. The Supreme Court held that in Hamdi in 
2004.
    Senator Graham. Do you agree with that, Mr. Kris?
    Mr. Kris. Yes, I agree with Mr. Johnson, yes.
    Senator Graham. To conclude, the only theory that would 
allow this country to indefinitely detain someone without a 
criminal trial would be the fact that we find them to be part 
of the enemy force, they're still dangerous, and they're not 
subject to being released; is that correct? The process that 
would render that decision?
    Mr. Kris. I'm not sure that dangerousness is actually even 
part of the initial judgment under the----
    Senator Graham. That's true, it's not required.
    Mr. Kris. I think their status--and that's obviously being 
litigated now in the habeas cases. I do think under Hamdi the 
court said that at some point that authority to detain could 
run out. But essentially I agree, I think, with what you're 
saying, yes.
    Senator Graham. Thank you.
    Chairman Levin. Thank you, Senator Graham.
    Senator Ben Nelson.
    Senator Ben Nelson. Thank you, Mr. Chairman.
    I think what you said in terms of geography is that 
``geography matters'' in terms of Article 22 court-martial or 
commissions, or geography may matter? In other words, where 
these military commission hearings are held, if outside the 
continental United States then perhaps a U.S. court would not 
or, could I say, could not intervene to provide extra 
protections under the Constitution? Mr. Kris?
    Mr. Kris. The analysis really depends on a variety of 
factors and it may be--I think it is the case that geography 
would have some impact on it. But it is very difficult to be 
precise and predict exactly what would happen.
    Senator Ben Nelson. Would there be a difference between 
Guantanamo and, let's say, Bagram Air Base, in terms of 
geography and what the courts may do with an Article 2 hearing?
    Mr. Kris. I want to be very careful. That is a matter that 
is currently in litigation, so I think I want to just be very 
careful to say that I think there could be some differences, 
but probably not go much further than that.
    Senator Ben Nelson. Mr. Johnson, what are your thoughts 
about geography?
    Mr. Johnson. Senator, much of this is unchartered territory 
in the courts in terms of what rights, if any, would apply to 
these detainees. I would say that it's our view that the 
detainees--whether in the United States or anyplace else, do 
not enjoy the full panoply of constitutional rights that an 
American citizen in this country would enjoy.
    Senator Ben Nelson. On a continuum, what I hear you saying 
at the present time under the current law, their rights are at 
this level, but it's not clear whether or not the courts could 
rule that the rights increase in numbers or in depth?
    Mr. Johnson. Let me try it this way. I think it is fair to 
say that it is our view that some level of a voluntariness 
requirement would be applied to statements that we would seek 
to offer in a military commissions case, a military commissions 
prosecution and that the ex post facto clause in the 
Constitution would apply if, hypothetically, these cases were 
prosecuted in the United States.
    I would note, however, that in practice our military 
commissions judges have engaged in an ex post facto analysis 
anyway in assessing the prosecutability of certain of these 
detainees at Guantanamo. Judge Allred specifically went through 
an ex post facto analysis at Guantanamo. I'm advised that in 
practice many of our military commissions judges have gone 
through a voluntariness analysis in assessing the admissibility 
of statements.
    Senator Ben Nelson. Mr. Johnson, can you speak to the 
progress of the Guantanamo review task force? I think there 
were 779 people who were detained at Guantanamo. As I 
understand it, 544 have been transferred, with 229 remaining. 
Is that a fairly accurate number as far as you know?
    Mr. Johnson. Those numbers sound accurate to me, Senator.
    Senator Ben Nelson. Do we know the status of the remaining 
detainees? I understand that there are those that could be 
tried under either Article 2 or Article III courts, but do we 
know how many have already been determined to be, let's say, 
under Article III? Because as I understand it Article III means 
that they would be coming to Federal courts for prosecution.
    Mr. Johnson. At this point we have not completed our 
review, so I don't have precise numbers for you. But I think it 
is fair to assume that at the end of the review we will have 
detainees in the five categories that the President outlined in 
his May 21st speech. There will be some prosecuted in Article 
III or we would seek to prosecute in Article III, some in 
military commissions, and some in that fifth category, some 
that are not prosecuted for various reasons, but for reasons of 
the safety of the American people and national security we want 
to continue to detain pursuant to the authority granted by this 
Congress with the Authorization for Use of Military Force 
(AUMF) and the Supreme Court holding.
    Senator Ben Nelson. Do you have any idea when that review 
may be completed?
    Mr. Johnson. Before the end of the year.
    Senator Ben Nelson. This year?
    Mr. Johnson. Yes, sir.
    Senator Ben Nelson. Okay.
    Admiral MacDonald, in your written testimony you addressed 
the proffered amendment to the MCA reported out by your 
committee and indicated that for the most part it addressed all 
of the matters that are and were of concern with regard to the 
MCA. Beyond the two issues that you highlight in your 
testimony, are there any other matters that ought to be 
addressed?
    Admiral MacDonald. No, sir. Those are the two that I was 
referring to that we were unable to get back in 2006.
    Senator Ben Nelson. I suppose in asking where the 
administration proposes to hold the military tribunals, Article 
2 cases--is it fair for me to ask what the administration's 
view is of where to hold these, based on the fact that 
geography may matter?
    Mr. Johnson. We've certainly made no decisions about that. 
Congress in the supplemental that was recently passed asserted 
its rights and prerogatives to know what we have in mind in 
this regard.
    Senator Ben Nelson. I suppose that's why I'm asking.
    Mr. Johnson. No decisions have been made and we continue to 
consider various options.
    Senator Ben Nelson. I assume there might be some advise and 
consent in conjunction with that?
    Mr. Johnson. I think in the supplemental language you've 
pretty much mandated that.
    Senator Ben Nelson. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Nelson.
    Senator Martinez.
    Senator Martinez. Mr. Chairman, thank you very much.
    Mr. Johnson, I'd like to ask, how will the Executive Branch 
make a determination of who gets tried under Article III and 
who may get tried in the MCA?
    Mr. Johnson. Senator, that is something that Mr. Kris and I 
have actually been working on as the representative of DOJ and 
I as the representative of DOD. As Mr. Kris stated, the 
President stated that where feasible we would seek to prosecute 
detainees in Article III courts. We are working through an 
expression of factors.
    Senator Martinez. Do you have a preference for an Article 
III court proceeding as opposed to a military commission 
proceeding? Is that by your preference or is that by rights 
that may be imbued upon the detainee?
    Mr. Johnson. I would state it in terms of, where feasible, 
we would prosecute people in Article III courts, but then you 
have to go through a variety of factors. For example: the 
identity of the victims; is there a law of war offense that 
could be more effectively prosecuted versus a Title 18 offense; 
identity of the place of capture, for example.
    We're working through now a variety of factors for our 
prosecution teams to consider in terms of what direction to go. 
But I think the intent is to have a flexible set of factors, 
because it is the case that many of these detainees, those that 
are prosecutable, viewed to have violated both the laws of war 
in Title 18.
    Senator Martinez. Admiral MacDonald, I wanted to ask you 
about the appeal process as envisioned, with the four-tiered 
process. It seems to me that if a defendant were charged with a 
Federal crime, a U.S. citizen was charged with a Federal crime 
somewhere in Florida, that defendant essentially has a one-tier 
appellate system, from a Federal district court to a circuit 
court of appeal, with a very unlikely appeal to the Supreme 
Court.
    A defendant in an American court, a citizen of this 
country, would not have as many appellate tiers as would one of 
the detainees in this instance, is that correct?
    Admiral MacDonald. Yes, sir. But remember, Senator, we're 
talking about conforming the commissions to the UCMJ and to our 
courts-martial process, and our court-martial process has--all 
of the services have a court of criminal appeals as a first 
tier of appellate rights. After that they appeal to the CAAF, 
which is the first civilian court within our military justice 
system to which they can appeal, and after that they have the 
right of appeal to the Supreme Court.
    I think what we're saying is that if you want to, to the 
extent that you can, stay faithful to the UCMJ, that one way to 
approach it on appeal would be to allow the Court of Military 
Commission's review, either military judges that currently sit 
on that court now or a combination of military and civilian 
judges, that they would have factual and legal sufficiency 
review powers, and then after that you could either go into the 
Federal system, to the DC Circuit as it's constituted today, or 
you could go to CAAF and mirror the UCMJ system. Either of 
those paths would lead you ultimately to the Supreme Court.
    Now, can CAAF do legal or factual sufficiency? Yes, 
Senator, they can. They're very skilled jurists. If the bill 
contains and continues to contain an appeal to the CAAF and 
that body is given both factual and legal sufficiency review, 
CAAF can do that. I think I would prefer the current system 
because our military judges are used to doing factual and legal 
sufficiency. But if you choose to go the CAAF route, the CAAF 
judges are capable of doing it.
    Senator Martinez. You made recommendations with regards to 
how to handle classified evidence and also the standard for the 
admission of coerced statements. Do you have any other 
recommendations that you would make?
    Admiral MacDonald. No, sir, those are the two. Senator 
McCain mentioned that we have to get these commissions moving 
and the practical aspects. That's really what my two 
recommendations go to. We are finding--and this is through 
discussions with the chief prosecutor--that they are having a 
lot of difficulty in using Military Rule of Evidence (MRE)-505 
to govern classified evidence.
    The recommendation to you is a CIPA-like process, a CIPA 
type of process. I would call it CIPA-plus, where we import the 
good parts of MRE-505, which is to close a proceeding, a 
military commission when classified, close it to the public 
when classified evidence is being introduced; that we would 
take that in, add it to the CIPA rules, where we have 20 years 
of Federal practice that our judges can rely upon. My personal 
opinion is that's probably a better approach to get these 
commissions moving.
    One of the complaints from the prosecutors is that the 
judges are demanding that they do everything with written 
submission, instead of what CIPA allows, which is an ex parte 
hearing where you can go in before the judge, you can get the 
issues resolved, and we can move on. That's why I recommended 
that the committee take a look at CIPA-plus as a substitute 
perhaps for the provision that talks about MRE-505.
    On the voluntariness piece, I do disagree with the 
administration on this. I think the committee has it right on 
the reliability standard that exists in the bill. I think 
fundamentally there is a difference between a voluntariness 
standard that grew up in a law enforcement environment, that 
that's different than the law of war context we find ourselves 
in.
    I am worried that a military judge that has a voluntariness 
standard imposed upon them is going to look at a statement 
taken at the point of a rifle when a soldier goes in, breaks 
down the door, and takes a statement from a detainee--I'm 
worried that they're going to apply a voluntariness standard to 
that. I would argue that's an inherently coercive environment, 
when you have a rifle pointed at you. I'm concerned a judge is 
going to look at that under a strict voluntariness standard and 
say that statement doesn't come in.
    I would rather see this as part of a totality of the 
circumstances leading to is the statement inherently reliable. 
What I proposed is a series of factors that would give the 
judge more guidance perhaps on how to do that analysis.
    Senator Martinez. Thank you very much.
    Chairman Levin. If you have actual language on your 
factors, you might want to share it with us, not now but for 
the record.
    Admiral MacDonald. Yes, sir. Yes, Senator, I will.
    [The information referred to follows:]

    I propose the following language:
      
      
    
    

    Senator McCain. But you're basically in agreement with the 
legislation passed through the committee?
    Admiral MacDonald. Yes, Senator, I am.
    Senator McCain. Thank you.
    Chairman Levin. Senator Udall.
    Senator Udall. Good morning, gentlemen. Thank you, Mr. 
Chairman. Senator McCain, Senator Graham, and I know Senator 
Reed, have all worked very, very diligently on this important 
set of questions.
    I have to note, can you imagine a lot of other countries in 
the world having this kind of discussion? It's a tough 
discussion. It's been contentious. But here we sit, in the best 
American tradition, deciding something as important as this.
    I was a member of the Armed Services Committee in the House 
for 4 years and I voted for legislation identical to the bill 
being proposed by this committee in 2006 that I thought struck 
a balance between military necessity and basic due process. 
That bill didn't pass and I voted against the MCA that we're 
discussing today. At the time, I thought that it risked tieing 
up--that is, the bill we passed--the prosecution of terrorists 
with new, untested legal norms that didn't meet the 
requirements of the Hamdan decision. I thought it might 
endanger our servicemembers by attempting to rewrite and limit 
our compliance with Common Article III of the Geneva 
Conventions. I thought it might undermine the basic standards 
of U.S. law and it departed from a body of law well understood 
by our troops.
    Given that, I'm really glad we're here today looking at 
this opportunity to revisit this important legislation.
    Admiral MacDonald, if I might turn to you, I was a member 
of the HASC almost 3 years ago when you testified about the 
importance of reciprocity. I want to quote you. You said that 
you would be concerned about other nations looking in on the 
United States and making a determination that if it's good 
enough for the United States it's good enough for us, and 
perhaps doing a lot of damage and harm internationally if one 
of our service women or service men were taken and held as a 
detainee.
    How do you think the military commission provisions in 
Senate bill 1390 measure up in terms of reciprocity? Are these 
provisions good enough for the United States in your view?
    Admiral MacDonald. Yes, Senator, they are, and I would get 
back to what Senator Levin said. The two major points here that 
we have to be concerned about are the reciprocity issue and 
creating a just and fair system. I think we need to be prepared 
to take any unlawful or unprivileged enemy combatant to one of 
these commissions.
    If we believe that we have created a fair and just process 
with this bill, we should not be shy about taking anyone before 
these commissions for, I think, Senator, just that reason. I 
would be very comfortable having a U.S. servicemember subjected 
to these rules.
    Senator Udall. Thank you for that answer.
    Mr. Kris and Mr. Johnson, if I might turn to you on the 
question of sunset provisions. Mr. Kris, you state that the DOJ 
supports such a sunset provision. Could you talk a little bit 
more along those lines? Then Mr. Johnson, I'd like to hear the 
DOD's views on a sunset provision, if you would.
    Mr. Kris. Yes, thank you, Senator. With respect to the 
sunset, of course, I'm not representing DOJ alone, but all of 
my testimony is representing the administration as a whole. Our 
basic idea that underlies the sunset--and we haven't specified 
any specific number of years--is as long as there's a 
continuity provision to allow pending cases to continue past 
the sunset, that it's a good idea for Congress to come back and 
take another look at this after the passage of some time and 
see whether there have been any developments that counsel some 
changes or a fresh look. That's really I think what it boils 
down to.
    Senator Udall. Mr. Johnson?
    Mr. Johnson. Senator, I would agree with what Mr. Kris 
said, provided that it doesn't jeopardize ongoing prosecutions. 
We think, in the administration, a sunset provision is a good 
idea. We don't have a magic period of years. But given the 
reality of changing circumstances on an international level and 
lessons that could be learned from military commissions 
prosecutions in the immediate years forward, we think a sunset 
provision is a good idea.
    Senator Udall. Thank you for those insights.
    If I might, let me turn to a follow-up question on comments 
that the chairman made in his opening statement on providing 
the resources for the defense side of the efforts that we're 
discussing today. The chief defense counsel issued a memo that 
I thought raised some troubling issues and I'd be interested in 
the views of each of the panelists on the current military 
commissions system and whether the committee bill addresses the 
needs of the defense efforts appropriately.
    Maybe we can start with Admiral MacDonald and move back 
across.
    Admiral MacDonald. Sir, actually I agree with the concerns 
expressed in the senior defense counsel's memorandum. These 
have been longstanding concerns about resources, about access 
to experts. I think it's something that needs to be addressed.
    I don't see anything, to your point about is it in the 
current bill, I don't see anything in terms of resourcing that 
would get at that, that particular issue. But I do think that 
the defense counsel needs more resources.
    Senator Udall. Mr. Johnson?
    Mr. Johnson. Senator, the legislation itself codifies a 
rule change we made in May to permit the detainee more latitude 
in selecting his defense counsel. But in terms of resources, at 
present Colonel Maciola, who I consult with often, who is the 
chief defense counsel, has 43 military lawyers assigned to him, 
5 civilian, and I'm told he's authorized to go up to 52.
    In response to your question about can we do better, one of 
the things that I'm focused on, that I'm concerned about, 
whether or not it's in this legislation is something that I 
intend to push on, is making sure that our defense counsel are 
adequately trained in capital cases. In the civilian world you 
have the concept of ``learned counsel.'' There are American Bar 
Association standards for what are learned counsel for capital 
cases. I think we owe it to the system to make sure that our 
defense counsel are adequately trained to handle capital cases.
    Senator Udall. Mr. Kris, my time's expired, so if you could 
be succinct, I'd like to hear your answer.
    Mr. Kris. Fortunately, I can be. This is primarily a DOD 
issue and so I'd just like to associate myself with the remarks 
of my colleagues. One thing to point out is that the 
committee's bill does follow our rule change in allowing a 
choice of counsel. I think it doesn't define the pool from 
which that choice would be made, and that would be something I 
think we'd like to work with you on.
    Senator Udall. Thanks again, gentlemen, for your 
enlightening testimony. It will help us answer some important 
questions. Thank you.
    Chairman Levin. Thank you, Senator Udall.
    Senator Reed.
    Senator Reed. Thank you, Mr. Chairman. Thank you, 
gentlemen.
    I just want to clarify some issues that have been 
previously touched upon. It's my understanding that in the 
Boumediene case in 2008 that the Supreme Court recognized the 
right of habeas corpus, that it's a constitutional right. Is 
that correct, Mr. Kris?
    Mr. Kris. Yes.
    Senator Reed. So there is at least one constitutional right 
that's been recognized in terms of enemy aliens and that is 
habeas corpus; is that correct?
    Mr. Kris. Yes.
    Senator Reed. That's the only one?
    Mr. Kris. So far, I believe that's the only right the 
Supreme Court has said applies there.
    Senator Reed. The issue that we've talked about with 
respect to sort of the geography of these trials is that--and 
it's just at this point to get your opinion--moving some of 
this military commission to the United States might engender 
other appeals that could trigger requests for additional 
constitutional rights?
    Mr. Kris. I think, regardless of where these cases are 
held, there will be appeals, depending on which appellate 
process is adopted, and there are a number of them under 
consideration, including in the bill. What results from those 
appeals I think, as Mr. Johnson and I have both said, is very 
difficult to predict because there's been quite a lot of 
development in the law over the last 50 years since commissions 
were last used.
    Obviously, there is some standard of due process that 
applies to a military commission. Exactly what that standard 
is, as I say, is sometimes difficult to discern. In light of 
developments like the Boumediene decision, it can be I think 
also increasingly difficult to be sure. I do think geography 
may play a role in the rights or the procedures that are 
required. But again, it's hard to know for sure.
    Senator Reed. Let me also raise another issue. That is, 
Admiral MacDonald pointed out that the law of war recognizes 
the indefinite detention of combatants until the end of 
hostilities. My impression is that Hamdan reserved that issue 
and did not decide it. Is that accurate, Mr. Kris?
    Mr. Kris. I think you may be referring to Hamdi.
    Senator Reed. Hamdi?
    Mr. Kris. Which is the decision in which the court 
recognized the authority to detain under the law of war, and 
the court left open, I think, the question whether that 
authority would at some point run out. I think that's an 
accurate statement.
    Senator Reed. I would presume that the category of 
individuals, that fifth category, those that have to be held 
because of their potential, will have the right to habeas to, 
periodically at least, raise the issue of whether they still 
should be detained? Mr. Johnson?
    Mr. Johnson. In fact almost all, if not all, of the 
Guantanamo detainees are suing the government in habeas. The 
President in his May 21 remarks stated with respect to that 
fifth category that there would be some form of periodic 
review, even subsequent to habeas proceeding, and that is 
something that we're working on now.
    Senator Reed. Thank you.
    One of the other reasons to move quickly but thoughtfully 
in this process of military commissions is that this is a way 
in which to ensure due process prior to a court deciding one of 
the habeas cases; is that accurate?
    Mr. Johnson. That's a fair statement.
    Senator Reed. That's a fair statement. I think it would 
serve us well to move with dispatch, but thoughtfully, on this 
legislation.
    Mr. Johnson. Yes, sir.
    Senator Reed. Admiral MacDonald, you commented about the 
voluntariness standard and your concerns, legitimate concerns, 
it might tend to, I won't say confuse, but it might tend to 
complicate the decisionmaking of military judges. Ultimately 
aren't we in a practical position trying to speculate about 
what the Supreme Court will hold, because that's one reason why 
we're here today doing this again?
    Admiral MacDonald. Yes, sir. I would agree with everything 
that's been stated this morning about how unsettled the law is 
in this particular area. What I would propose is using 
voluntariness, not as the only standard, but subsuming that as 
one of a number of factors, others being the extent to which a 
statement is corroborated, looking at the reliability of the 
statement within the four corners of the document itself.
    My opinion is that the Supreme Court or a Federal court 
would recognize that there are fundamental differences between 
a standard that grew up in a law enforcement paradigm versus 
one that we're trying to understand in a law of war paradigm. 
The reason I talk about this balancing test, this totality of 
the circumstances and the number of factors, is I think that 
will provide the judge with a kind of a guidepost. For example, 
if you're evaluating a statement that was taken at the point of 
capture, you might weigh voluntariness less, because it's a 
more coercive environment, than you would corroboration and the 
four corners of the document.
    As you become more attenuated from the battlefield, for 
example 6 months to a year after the detainee is removed from 
the battlefield and is in a facility like Guantanamo, then 
perhaps voluntariness in the judge's mind would be more 
important. But we would leave that to the military judge to 
determine on a case-by-case basis as he or she sees it.
    Senator Reed. Thank you very much, Admiral.
    If I may have one final question, please, of Mr. Johnson. 
Is it your intention or have you decided to either try, give 
everyone who's in Guantanamo some type of due process, either 
military commission or a trial in Article III courts, or are 
there some people that simply will not get any procedure at 
all, that will be deemed to be an enemy combatant who will be 
detained?
    Mr. Johnson. Putting aside anyone who has been released or 
may be transferred to a third country in the future, I think 
it's accurate to say that the remaining population will either 
be detained because we've been upheld in the habeas litigation 
and they're subject to that periodic review I referred to a 
moment ago, or those that violate the laws of war, that we feel 
we can and should prosecute, we prosecute in a military 
commission, and those that can be prosecuted for violations of 
Title 18 will be referred to DOJ and Article III courts.
    Senator Reed. Thank you, Mr. Johnson.
    Chairman Levin. Thank you, Senator Reed.
    Senator Hagan.
    Senator Hagan. Thank you, Mr. Chairman, and thank you, 
gentlemen.
    Over the course of many years the former administration has 
released a number of detainees from Guantanamo. Obviously, we 
are hoping that many of the other countries will take some of 
these detainees that are remaining. We need to be mindful of 
the fact that the countries in the region, such as Yemen, are 
currently incapable of mitigating the threat posed by the 
returned Guantanamo Bay detainees. Whether the country lacks 
the appropriate institutions or mechanisms of enforcement, such 
as a counterterrorism law, or just the ability to prosecute 
these detainees. Additionally, many countries in the region may 
not be willing to accept them.
    I think we need to work with the countries in the region 
that have a proven track record in rehabilitating the 
terrorists to accept detainees transferred from Guantanamo Bay. 
According to the Office of the Secretary of Defense (OSD), 
Saudi Arabia remains one of the most reliable counterterrorism 
partners in accepting detainees that have transferred from 
Guantanamo Bay. The Saudis have actually institutionalized a 
rehabilitation program that was developed by the ministry of 
interior to de-radicalize and rehabilitate the former detainees 
for reintegration into the society in Saudi Arabia.
    According to OSD, efforts are under way to convince Saudi 
Arabia to accept some of the Yemeni detainees that have Saudi 
tribal affiliations into the Kingdom's rehabilitation program.
    My question for all of you is, how is DOD addressing the 
problem that many countries in the region are just simply not 
capable of mitigating the threat posed by the Guantanamo Bay 
detainees and they lack the appropriate institutions and 
mechanisms to prosecute them? Also, can you provide your 
opinion on working with the countries in the region, such as 
Saudi Arabia, to accept these Yemeni detainees that are 
transferred from Guantanamo Bay that share the same tribal 
affiliations?
    Mr. Johnson. Senator, I agree with just about everything 
you said. Many people do not understand that it's not as simple 
as, oh, XYZ country is willing to take the detainee back, so we 
can send them back. There needs to be in place an adequate 
rehabilitation program where the circumstances warrant or the 
ability to monitor in that accepting nation so that the 
detainee doesn't simply return to the fight and that we 
minimize to the fullest extent possible any acts of recidivism 
for those who are transferred or released.
    The safety of the American people is the utmost concern. We 
believe strongly that rehabilitation programs like the one you 
referred to are something that we should encourage, promote, 
and it's something we're very, very focused on.
    Senator Hagan. Mr. Kris?
    Mr. Kris. I agree with everything that Mr. Johnson said. It 
is absolutely essential that when we transfer these people to 
foreign countries that we do so under conditions that ensure 
safety. The rehabilitation program that the Saudis have is an 
excellent program from what I understand.
    Admiral MacDonald. Senator, I would agree with Mr. Johnson 
on this. Particularly with our military members, we're 
concerned about returning fighters to the battlefield. This is 
a big issue for us. I think the way Mr. Johnson characterized 
it is exactly right.
    Senator Hagan. Thank you.
    Also, I think that we need to be mindful that, although the 
interrogation of detainees produces obviously valuable 
information and sources of intelligence, we also know that they 
can compromise the ability to prosecute detainees, obviously, 
if the evidence obtained is through an interrogation method 
that would involve torture.
    Mr. Kris, can you just describe the process in which DOJ is 
reviewing the evidence associated with each of the Guantanamo 
Bay detainees to determine if they can in fact be prosecuted 
and how DOJ is working with DOD in this regard?
    Mr. Kris. Yes, I'd be happy to do that, Senator. Mr. 
Johnson and I are working closely together on this. There is 
obviously the review by the task force that was set up by the 
Executive order, that makes judgments about whether cases are 
potentially prosecutable. At that point they need to be 
reviewed both by DOJ and DOD, working together to try to figure 
out, are these cases really appropriate to indict either in an 
Article III court or to bring before a military commission.
    As Mr. Johnson and I have talked about, this is a fact-
intensive judgment. It requires a careful assessment of all of 
the evidence, identity of the victims, location of the offense, 
and a variety of other factors.
    I would point out that these kinds of forum selection 
choices are not unfamiliar to Federal prosecutors. They have to 
make these kinds of choices in other cases as well, whether 
it's between Federal and State or United States and foreign or 
even UCMJ and Article III courts. So there has to be a process 
by within the case is really carefully reviewed and worked up 
by a joint team and then a judgment made about whether and 
where it ought be prosecuted.
    Senator Hagan. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Hagan.
    We're going to have a 2-minute second round with this 
panel. I wish it could be a lot longer.
    First to Admiral MacDonald. I didn't ask you this question 
the first round, so let me ask you now. Do you believe that our 
language conforms to the Hamdan standards?
    Admiral MacDonald. Yes, sir, I do.
    Chairman Levin. Second, Admiral, I think Mr. Johnson said 
that the preference here would be to have more Article III 
trials. We will I think hear some testimony that all the trials 
should be Article III, that there shouldn't be any military 
commissions. I'm wondering if you could tell us as kind of a 
military man, but a JAG officer in the Navy, why military 
commissions at all? What are those circumstances which make it 
difficult, that I think Mr. Kris and Mr. Johnson are working 
through, as to why would you want to try anyone under military 
commissions or need to try anybody with military commissions?
    Admiral MacDonald. Well, Senator, I think again it goes 
back to the UCMJ and Federal law is designed for a different 
model. It's designed for law enforcement. We're in a wartime 
environment.
    Chairman Levin. Give us some practical parts of that 
environment which would lead you to conclude we ought to have 
military commissions try people or that we need to have the 
military commissions?
    Admiral MacDonald. Again, Senator, it would go to that very 
coercive environment. We're relying upon our soldiers to go 
into a dangerous environment, where in many instances they have 
to break down doors, and we're worried about their safety. 
They're worried about it. We don't want them to have to stop 
and think about giving Miranda rights or giving Article III1B 
rights under the UCMJ. We don't want them thinking, in my 
personal opinion, about whether or not the statements that they 
are getting from someone in a house that they've just broken 
into, whether that statement is purely voluntary or not.
    I think that's recognized and the Supreme Court recognized 
that in the Hamdan case, that there are these unique 
circumstances that come up in a law of war environment that 
just cannot be handled under two different systems that were 
created for a completely different reason.
    The other thing that I would say, sir--and this is to your 
point in your opening about a fair and just process. I think we 
need to be clear. As we go forward with these commissions, we 
need to feel that these commissions can try anyone, anyone that 
fits within the jurisdictional definition that you've put in 
the bill, the personal jurisdiction section. We ought to feel 
very comfortable taking anyone.
    Now, I understand that the President prefers Article III 
courts. But in my opinion, when we leave here today we ought to 
be looking at this bill and saying to ourselves, it is fair and 
just. To Senator Udall's question, we would feel very 
comfortable having our own servicemembers tried under this kind 
of a process.
    I don't think we should kid ourselves. Any enemy combatant 
should be able to be tried under this process.
    Chairman Levin. Admiral, just quickly, relative to your 
totality of the circumstances point as to whether or not a 
statement obtained is coercive; in our bill, a statement that 
is obtained through cruel, inhuman, and degrading treatment is 
not admissible, period. What you are suggesting is that, 
instead of adding a ``voluntary standard'' to that, that there 
be something much more carefully defined so a judge can look at 
the totality of the circumstances to take into account these 
factors involving warfare and the use of force. Is that 
accurate?
    Admiral MacDonald. Yes, Senator. We pushed in 2006 to 
eliminate the discrimination between statements taken before 
December 30, 2005, the date of the Detainee Treatment Act, and 
a standard imposed to statements after. Your bill eliminates 
that distinction and so statements taken under torture are 
eliminated. CID statements, they're eliminated. I'm talking 
about some level of coercion below those two standards.
    Chairman Levin. Torture is defined by the Geneva 
Conventions.
    Admiral MacDonald. Yes, sir.
    Chairman Levin. There's one more thing I have to clear up 
and it is this question of location. Our bill clearly is not 
going to distinguish what procedures are dependent on the 
location of the military commission. I mean, there's no way 
that our statutory language can make that distinction.
    I think that you were pressed, Mr. Johnson, and I think Mr. 
Kris to some extent, to describe where it might make a 
difference, I guess in terms of a judicial or court or a 
judge's opinion as to depending on where the location is. I 
don't see that at all. I must tell you, I don't see how the 
location of a military commissions hearing can have an effect 
at all. It won't have an effect nor can it in the way we write 
the procedures.
    Finally, however, on the other side of the coin, if you're 
going to try people for Article III crimes, which is your 
preference, there's no way practically those folks can be tried 
in Guantanamo. You cannot have a jury empanelment that takes 
months, with hundreds of citizens dragged down to Guantanamo to 
live while a jury is being empaneled in an Article III criminal 
case.
    There are many reasons why we need to bring people, if 
we're going to try them for crimes under Article III, which we 
want to, to the United States as a practical matter. As far as 
where a military commission is held, I don't see that there is 
a difference. You've been asked for the record to give us any 
thoughts on that, and of course that request I know you will 
honor and give some thought to.
    But I just don't offhand see that it could make any 
difference as to the procedures as to where a military 
commission is held. That's a statement. It's not a question. 
I'm way over my time. If you want to react to that for the 
record--Mr. Kris?
    Mr. Kris. First, I agree with you that it's hard to imagine 
an Article III prosecution occurring at Guantanamo. Second, in 
talking about location, Jeh and I have been, I think, perhaps 
cautious just because these are difficult issues, and we will 
get you something for the record.
    But third, I just want to make clear, despite the 
difficulties, our best prediction is that voluntariness will be 
required as a matter of due process here. It's a voluntariness 
standard that is based on totality of the circumstances and 
it's very similar, I think, to what Admiral MacDonald was 
talking about. That is, you have to take account of the 
realities of war. But I do want to make clear that we've come 
to that conclusion.
    Chairman Levin. That is the position of the administration. 
We'll welcome language from both of you on that. But our bill 
as it stands does incorporate the Geneva Conventions.
    [The information referred to follows:]

    [See responses to questions number 28 and 29.]

    Chairman Levin. Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    I think we'll find some common ground here about the 
evidentiary standard as far as a statement goes. I think we 
both view it the same. Admiral MacDonald, you described the 
situation very well. When you're in detention outside the 
battlefield, the analysis will be different than if you're in 
the middle of a firefight. The judges should be able to 
accommodate those circumstances. I don't think there's really a 
whole lot of difference, Mr. Kris, between you and Admiral 
MacDonald when you get there.
    This location issue is very important because of the 
politics of this, for lack of a better word. Mr. Johnson, is it 
your view that closing Guantanamo Bay would be an overall 
benefit to the war effort and starting over on detainee policy?
    Mr. Johnson. It's my view, Senator, which is also the view 
of the administration, but it's my view that closing Guantanamo 
enhances national security.
    Senator Graham. Maybe being the odd guy out as a 
Republican, I believe that also, simply because Generals 
Petraeus, Odierno, and every other combat commander has said 
that being able to start over with detainee policy would take a 
tool off the table used by our enemies, because Guantanamo Bay, 
quite frankly, is the best-run military prison in history right 
now. Do we all agree with that, the current state, Admiral?
    Admiral MacDonald. Yes, sir, I do.
    Senator Graham. Mr. Johnson?
    Mr. Johnson. I've been there. The professionalism of the 
Guards at Guantanamo is remarkable. I've visited civilian 
clients in a few Federal Bureau of Prisons places and I agree 
that the professionalism of our personnel there is really 
remarkable.
    Mr. Kris. I too have visited GTMO and I also was quite 
impressed.
    Senator Graham. To the Guard force families who may be 
listening, what your loved one goes through every day at 
Guantanamo Bay is a real sacrifice. That is a tough place to do 
duty. Having said that, it is what it is, and starting over 
with detainee policy I think could help the country.
    Mr. Kris, you said one of the goals of a reformed 
commission is to let the international community know that 
there's a formal legitimacy to the commission that we haven't 
been able to have otherwise; is that correct?
    Mr. Kris. I do think it is important, and I take it to be 
one of the main reasons that we're doing this work, that the 
committee is doing this work, is to enhance the legitimacy.
    Senator Graham. I totally agree. But the last thought is, I 
just can't believe, quite frankly, given the Supreme Court 
cases, that if you close Guantanamo Bay, move the detainees 
within the United States and performed a military commission 
trial like we did in World War II, that there'd be a 
substantial difference. What I don't want to have taken away 
from this hearing is that if we close Guantanamo Bay and move 
the detainees within the United States that there will be 
conferred upon them a plethora of legal rights they wouldn't 
have otherwise.
    Can you just address that?
    Mr. Kris. It may be helpful if we say this. There are a 
number of I think relatively modest differences between the 
committee's bill and the administration's proposal. As you've 
said, they're not vast and we do approve of and support the 
bill.
    The changes that we're recommending we think would be ample 
to survive constitutional review even if the commissions were 
held in the United States.
    Senator Graham. Just the location alone is not going to 
change the dynamic the court would apply in a dramatic way?
    Mr. Kris. No. We think that what we're proposing will pass 
muster comfortably in the United States.
    Mr. Johnson. Senator, we're not suggesting--and I want to 
emphasize that--that the full range of constitutional rights 
would apply depending upon location. We have referred in this 
hearing today to voluntariness. Mr. Kris is right, when you 
look at the suggestion from the administration on a totality of 
the circumstances voluntariness test it's really not that 
different from what Admiral MacDonald has described.
    Admiral MacDonald. Senator, I think as you have just 
pointed out, this is really coming down to that, that 
particular right, and the voluntariness test. I would align 
myself with Mr. Kris, that blaming the sites of the military 
commission in terms of additional constitutional rights should 
not matter in this. I think we probably can reach some common 
ground between what I would consider to be a balancing test 
using voluntariness and what the administration's position is 
right now.
    Chairman Levin. Thank you, Senator Graham.
    Senator Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman.
    Chairman Levin asked Admiral MacDonald a question, a 
rhetorical question of why would you try any of these people in 
a military commission setting, as our bill requires? I thought 
your answer, Admiral MacDonald, was compelling and very 
principled. To a certain extent, I suppose what I really want 
to do is ask the question from a different perspective of Mr. 
Johnson and Mr. Kris, which is: Why would anyone prefer to try 
people apprehended for violations of the law of war in an 
Article III Federal court? As you said, Mr. Johnson--I was 
disappointed with your answer and it kind of pulled me back a 
little bit from my feeling of appreciation toward the 
administration for accepting the role for the military 
commissions in handling these people.
    I mean, the fact is that from the beginning of our country, 
from the Revolutionary War, we've used military tribunals to 
try war criminals or people we have apprehended, captured, for 
violations of the law of war. Again, I think the unique 
circumstances of this war on terrorism against the people who 
attacked us on September 11 may have led us down, including the 
Supreme Court, some roads that are not only to me ultimately 
unjust, but inconsistent with the long history that we've had 
here.
    We talked before about how military commissions are not 
only within the Hamdan decision, but certainly within the 
Geneva Convention, which is the international standard for 
fairness and justice in handling people captured during a war.
    Why would you, in light of all that, say that the 
administration prefers to bring these people before Article III 
Federal courts instead of military commissions, which are 
really today's version of the tribunals that we've used 
throughout our history to deal in a just way with prisoners of 
war?
    Mr. Johnson. Senator, please don't misinterpret my remarks. 
I applaud this committee's effort and this committee's 
initiative to reform the MCA. I think that military commissions 
should be a viable, ready alternative for national security 
reasons for dealing with those who violate the laws of war, and 
I'm glad we're having this discussion right now and I thank the 
committee for undertaking this.
    As we said, by and large we definitely support what you're 
doing. The President has made that clear. I'm going to say this 
on behalf of the administration, when you're dealing with 
terrorists, who have a fundamental aim of killing innocent 
civilians, it is the administration's view that when you direct 
violence on innocent civilians, let's say in the continental 
United States, that it may be appropriate that that person be 
brought to justice in a civilian public forum in the 
continental United States because the act of violence that was 
committed against the civilians was a violation of Title 18 as 
well as the law of war.
    We believe strongly that both alternatives should exist.
    Senator Lieberman. Well, I hear you. I respectfully 
disagree insofar as the administration has stated today a 
preference for trying these people in Article III courts. I 
think, based on what you've just said, essentially the effect 
of it is to give these war criminals, people we believe are war 
criminals--that's why we captured them--the greater legal 
protections of the Federal courts because they have chosen to 
do something that has pretty much not been done before in our 
history, which is to attack Americans, to kill people here in 
America, as they did on September 11, civilians, innocents, it 
doesn't matter, and to do it outside of uniform.
    I think it puts us in a very odd position. We're giving 
these terrorists greater protections in our Federal courts than 
we've given war criminals at any other time throughout our 
history, even though in my opinion they are at least as brutal 
and inhumane, probably more brutal and inhumane, than any war 
criminals we've apprehended over the course of the many wars 
we've been involved in.
    Yes, it may be also an act of murder to have killed people 
who were in the Twin Towers on September 11, but it was an act 
of war and the people who did that don't deserve the same 
constitutional protections in our Federal courts as people who 
may be accused of murder in New York City. I say New York City 
because the attack was there.
    I'm over my time. This is a very important discussion which 
I look forward to continuing with respect, with you and others 
in the administration.
    Thank you.
    Chairman Levin. Thank you, Senator.
    Senator Martinez.
    Senator Martinez. Thank you, sir.
    To follow up on that, I think that it's fascinating for us 
to discuss a person like Khalid Sheikh Mohammed, who didn't 
wear a uniform and in fact inflicted great harm upon civilians, 
not only here but in other parts of the world. He considers 
himself to be a part of a movement, of a political movement, 
that we would then consider a person like that to have a 
preference for trying him as a criminal under Title 18 in an 
Article III court and according him an additional set of legal 
rights as opposed to in a military tribunal.
    That begs another question. If we are doing Article III 
trials, as the chairman was suggesting, we then also are 
talking about closing Guantanamo by the end of the year. 
There's no way for 220-some odd people to be processed through 
some proceeding, whether Article III or military commissions, 
in that timeframe. Where will they then be? I guess they'll be 
here. What about those that are then acquitted? Where do they 
go? What happens to them?
    Would you mind touching on those issues?
    Mr. Johnson. You're correct, you can't prosecute some 
significant subset of 229 people before January. Those that we 
think are prosecutable and should be detained we will continue 
to detain, whether it's at Guantanamo or someplace else.
    The question of what happens if there is an acquittal is an 
interesting question. We talk about that often within the 
administration. I think that as a matter of legal authority if 
you have the authority under the laws of war to detain 
someone--and the Hamdi decision said that in 2004--that is true 
irrespective of what happens on the prosecution side.
    Senator Martinez. Therefore the prosecution becomes a moot 
point?
    Mr. Johnson. No, no, I'm not saying that at all. I'm saying 
you raised the issue of what happens if there is an acquittal.
    Senator Martinez. Right.
    Mr. Johnson. In my judgment, as a matter of legal 
authority--you could get there--there might be policy judgments 
one would make, but as a matter of legal authority, if a review 
panel has determined this person is a security threat and 
they've lost in their habeas and we've gone through our 
periodic review and we've made the assessment the person is a 
security threat and should not be released, if for some reason 
he's not convicted for a lengthy prison sentence, then as a 
matter of legal authority I think it's our view that we would 
have the ability to detain that person.
    Whether in fact that actually happens I think would depend 
upon the circumstances and the facts of the particular case. 
But as a matter of legal authority, I think we have law of war 
authority, pursuant to the authority Congress granted us with 
AUMF as the Supreme Court interpreted it, to hold that person, 
provided they continue to be a security threat and we have the 
authority in the first place.
    Senator Martinez. Thank you.
    My time is up, but I will just conclude with a comment, 
that I truly believe that these are not criminals, that these 
are people engaged in a very profound battle against this 
country as part of a non-state actor for some of them, but they 
nonetheless do not really belong treated as criminals, but as 
people that are involved in something much deeper and greater 
than that.
    Chairman Levin. Thank you, Senator Martinez.
    Senator Udall.
    Senator Udall. Thank you, Mr. Chairman. I'll be brief.
    I want to thank the three panelists for your excellent 
testimony. I want to also acknowledge the fact that the 
civilian judicial system is interfacing and working with the 
military judicial system. I speak as a non-lawyer, I'm already 
getting into deep water here. It seems to me that our judicial 
system is a living, evolving, growing thing, if you will, and 
we're working here to make sure that it's nurtured. Another way 
to look at this perhaps is that you have two different kinds of 
software systems that we're trying to integrate and understand 
together. Again, I want to thank the civilian and the defense 
establishments for working together.
    Any time I have remaining, Mr. Chairman, I pre-yield it to 
the great questions from the JAG officer who sits on this 
Senate committee, Senator Graham, who I thought has been very, 
very informative, very incisive with his questions and comments 
today.
    Senator Graham. Really, we do have two legal systems. 
Habeas rights have been granted to Guantanamo Bay detainees. 
While I don't agree with that, under the bill that Senator 
Levin and I wrote, every detainee would wind up in Federal 
court, the DC Circuit Court of Appeals. The Supreme Court ruled 
that habeas rights apply to the detainees.
    We need to look as a Nation about creating uniformity to 
these habeas rights. Do we as a Nation want habeas petitions to 
allow for lawsuits against our own troops? A medical 
malpractice case was brought under the old habeas system. I 
think, Senator Udall, we can streamline the habeas process. 
There is a role for an independent judiciary.
    I would just like to conclude with this. No one should be 
detained in America for an indefinite period of time that 
doesn't go to a civilian court or a military court without an 
independent judicial review. I don't want people to believe 
that folks are in jail because somebody like Dick Cheney or 
fill in the blank with a politician said so. It doesn't bother 
me at all that all of our cases will go to civilian judges and 
the military and the Central Intelligence Agency has to prove 
to a civilian court that these people are dangerous and they're 
part of the enemy. Once that's been done, then I think it's 
crazy just to arbitrarily say you have to let them go. If our 
intelligence community, upon a periodic annual review believes 
that they present a danger to this country, I think it would be 
crazy to say you have to let them go, because you don't under 
the law of armed conflict.
    Just to end, Senator Udall, we need a hybrid system. We 
need civilian judges involved in this war because it's a war 
without end. As the President said last week, there will never 
be a definable end to this war. An enemy combatant 
determination can be a de facto life sentence. I don't want to 
put people in a dark hole forever. I want them to have a way 
forward based on their own conduct. Some of them will be able 
to get out of jail because they've rehabilitated themselves and 
some of them may in fact die in jail. But I want it to be a 
process that's not arbitrary, that's not based on a politician 
saying so, but a collaborative process with an independent 
judiciary legitimizing our actions.
    I think that's what this country has been lacking and 
that's what we need to go forward. That's not being soft on 
terrorism. That's applying American values to this war.
    Chairman Levin. Thank you.
    Senator Reed.
    Senator Reed. Thank you.
    This has been a very thoughtful discussion. There's been a 
discussion about the value of trying everyone in a military 
tribunal, military commission, or trying people in civilian 
courts. I think, just for the record, that there is a value to 
trying some of these individuals in civilian courts because 
they are criminals, and because when they try to claim a mantle 
of warrior, that is feeding into their appeal out in the 
greater Islamic world, but in fact they're criminals. They have 
committed premeditated murder. In that situation, if we can 
mount a case effectively in court, we should not only do that, 
but they should be not only convicted, but also identified as 
criminals, not as soldiers, not as warriors, etcetera.
    There are other cases where, captured on the battlefield or 
because of practical considerations, a military tribunal will 
work. I just wonder, Admiral MacDonald, as a uniformed officer 
do you have a reaction to that?
    Admiral MacDonald. Senator, I guess my only point would be 
this, I think we need at the end of the day to have full faith 
and confidence that what we're creating in this bill is a fair 
and just process. I am sensitive, too, that there may be 
situations where going to an Article III court, going to 
Federal court, may be the right decision, given the facts and 
circumstances that exist in a case.
    I think it's absolutely vital that when we leave here at 
the end of the day it's not because we believe that what we've 
created is a second class legal system. We need to look at 
this, that this can stand alone in the world and we are willing 
to be judged by what we're putting together today. That's my 
only point, is that you ought to feel very comfortable sending 
anybody to these commissions process with these changes because 
we believe it's a fair and just system.
    Senator Reed. The ultimate test would be if an American 
service man or service woman were subject to these procedures 
we would consider them to be appropriate.
    Admiral MacDonald. Yes, Senator.
    Senator Reed. Thank you.
    Chairman Levin. Thank you.
    I will just conclude by saying what our bill does not 
address, does not purport to decide or address. One, we do not 
decide whether a person, who's going to be tried, is tried by 
an Article III court or a military commission. We've been told 
there's going to be some of each for various reasons. We do not 
make that decision in this bill at all, don't try to, don't 
purport to.
    Second, we do not address the question of where a trial 
takes place. That is not addressed in this bill.
    Third, what we do is address the procedures that would 
apply where there are military commission trials. It's pretty 
obvious to me as chairman that those procedures will apply 
regardless of where the military commission is held. There 
can't be any difference in the way we write a bill on that. I 
disagree with the suggestion that somehow or other it will make 
a difference in terms of a court ruling, Supreme Court or 
otherwise, as to whether or not a military commission 
proceeding is held in the United States or in Guantanamo. I 
just, as a lawyer, cannot imagine the Supreme Court or any 
other court saying, well, this commission was held in one 
place, therefore one rule, constitutional rule, applies; if it 
were held in another place, a different constitutional rule 
applies.
    Given what the court has decided in Boumediene and what the 
court has decided in Hamdan, I just can't imagine there would 
be any difference in that decision, whether trial court or 
Supreme Court, as to where this military commission proceeding 
took place.
    Finally, on the voluntariness issue, hopefully we can come 
up with some common language on that. But in any event, we have 
language in the bill which incorporates the requirements of the 
Geneva Conventions in terms of coercion, in terms of whether or 
not a statement can be used against a defendant.
    Thank you all very much for your wonderful testimony here. 
Your very carefully thought out testimony will be made part of 
the record. We'll have some additional questions for the 
record, and we'll now move to our second panel. [Pause.]
    On the second panel we have three distinguished experts on 
military commissions from outside of the government. You're our 
outside panel.
    First, Rear Admiral John Hutson capped a distinguished 27-
year career as a Navy lawyer, serving as the Judge Advocate 
General of the Navy from 1997 to 2000. He is currently Dean and 
President of the Franklin Pierce Law Center.
    Second, retired Major General John Altenburg completed a 
28-year career as an Army lawyer, serving as Assistant Judge 
Advocate General of the Army from 1997 to 2001, and as the 
first Appointing Authority for Military Commissions from 2003 
to 2006.
    Finally, Daniel Marcus served as General Counsel of the 9/
11 Commission, after spending a number of years in the White 
House Counsel's Office and DOJ. He now teaches national 
security law and constitutional law at the Washington College 
of Law at American University.
    Gentlemen, we thank you. We didn't give you much notice 
about this hearing. It's a very important hearing and we 
greatly appreciate your attendance and the work that you put in 
all your lives for this Nation.
    Admiral Hutson, we'll start with you.

  STATEMENT OF RADM JOHN D. HUTSON, USN (RET.), FORMER JUDGE 
                  ADVOCATE GENERAL OF THE NAVY

    Admiral Hutson. Thank you, Mr. Chairman. I very much 
appreciate this opportunity. The honor and privilege is not 
lost on me.
    I'll be brief. We don't ask DOJ to fight our wars and I 
think we shouldn't ask DOD to prosecute our terrorists. I 
respectfully disagree with Senator Martinez. I think that they 
are criminals and they ought to be treated as such, and to 
somehow elevate them to the status of, say, Major Andre I think 
is inappropriate.
    I have two concerns particularly. One is that right now the 
U.S. military is, if not the most highly respected institution 
in the United States, it's certainly among the very top. There 
are a couple of reasons for this. One is that the military 
carefully restricts itself to its primary mission, which is to 
fight and win our wars, to provide the time and the space 
necessary for the real solutions, social, cultural, religious 
and otherwise, to take place. Then, once that mission is 
limited to warfighting, the military does that very, very well, 
just as DOJ prosecutes criminals very, very well.
    The other aspect for me is that DOJ has scores of 
experienced prosecutors, decades of precedent and experience, 
lots of judges, and great credibility, justifiable credibility 
in this area, that DOD simply doesn't have. DOD personnel 
policy is to rotate people every 2, 3, or 4 years. They will 
never ever get the experience that Federal prosecutors have or 
that Federal judges have.
    I think we're missing an opportunity to display the 
greatest judicial system on the face of the Earth, to shout it 
from the rooftops. Rather than doing that, we're sort of hiding 
it under a bushel and bringing out the uniformed service 
persons. I admire and am proud of the job that they do, but 
it's simply not the primary responsibility of DOD or the U.S. 
military or the Armed Forces to perform that function, and I'd 
rather see it where it should be, in the very capable hands of 
DOJ.
    Thank you, sir.
    [The prepared statement of Admiral Hutson follows:]
         Prepared Statement by RADM John D. Hutson, USN (Ret.)
    I am the Dean and President of the Franklin Pierce Law Center. I 
served as a Judge Advocate in the United States Navy from 1973-2000 and 
as the Judge Advocate General of the Navy from 1997-2000. I am very 
aware of the honor and privilege of testifying before this committee on 
the matter of military commissions. I thank the committee for this 
opportunity.
    Even greater than democracy itself, the greatest export of all from 
the United States is justice. Daniel Webster once said, ``Justice, sir, 
is the greatest interest of man on Earth. It's the ligament which holds 
civilized beings and civilized nations together.'' But Justice is 
fragile and easily disparaged. It must be nurtured and handled with 
great care.
    I was an early and ardent supporter of military commissions. 
Initially, I was drawn to their historical precedents and, more 
importantly, I was confident that the United States Armed Forces could 
and would conduct fair trials even of reprehensible defendants. My own 
experience gained during 28 years in the Navy and our long history of 
providing due process while trying our own military personnel in 
courts-martial gave me this confidence.
    Unfortunately, as it turned out, the commissions that were created 
did not live up to the traditions of the Uniform Code of Military 
Justice (UCMJ). Predictably, they became a significant distraction for 
the military. I hasten to add that this was in spite of the stalwart, 
honorable effort of many, many military personnel themselves. Indeed, 
that is one of the great tragedies of this saga, and largely makes one 
of the points that I wish to underline.
    The primary role of the military is to fight and win our Nation's 
wars or, stated more precisely, to provide the time and space necessary 
for real solutions--economic, cultural, social, religious--to take 
place. Prosecution of miscreants is an occasionally necessary sidebar 
to that mission but shouldn't distract from it. We have the UCMJ and 
the military court-martial system to expedite the legitimate role of 
the military, not interfere with it.
    If a sailor on a ship is alleged to have committed a crime, we must 
expeditiously and fairly resolve that problem. Otherwise, it can fester 
and interfere with unit cohesion and impede an effective fighting 
force. The UCMJ and the Manual for Courts Martial serve that purpose 
alone. They solve problems for the armed forces; not create them. Our 
recent history with military commissions has been the opposite. I've 
come to realize that even a perfect commission regime would be a 
distraction for the military. It's simply not part of its mission. I am 
very concerned when the military is called upon to perform functions 
outside of its core mission even when I'm confident that it can do it 
well. Preserving and ensuring justice in the United States is the 
primary mission of the Department of Justice (DOJ), not the Department 
of Defense (DOD).
    If there will be criticism of our prosecution of alleged 
terrorists--and there will be--DOJ and the U.S. Federal Court system 
are equipped to deal with that criticism. Indeed, it is part of their 
responsibility to face it, address it, and resolve it.
    Notably, the criticism will come not only from critics outside the 
judicial process such as the media, foreign allies and enemies, and 
domestic commentators but also from the legitimate appeal process. Some 
of the criticism may actually be justified or, at least, defensible. 
There is no reason in law or logic for the military to be the target of 
that. Convictions from military commissions will be appealed until 
Dooms Day just because of the forum of the conviction. Federal courts 
are impervious to that.
    It is decidedly not the responsibility of DOD or the U.S. military 
to deal with criticism of such prosecutions. It would, in fact, be 
detrimental to the military mission. There are valid and important 
reasons why our military is the most highly respected institution in 
America. One of them certainly is that the military limits itself to 
its mission and performs that mission very well. Taking on duties 
outside of that core mission on an ongoing basis will surely undermine 
the public's confidence in the military . . . and divert important 
resources, human and otherwise, from that mission in order to take on 
the new one.
    We already have proof of this. Besides being a distraction to the 
vital mission of DOD, military commissions have, to a large extent, 
become a discredit in spite of the valiant and highly credible efforts 
of many, many people in uniform. Rather than showcasing the military 
justice system of which we all are justifiably proud, commissions 
represent something else entirely. They have not worked often or well. 
``Fixing'' them would help, but won't eliminate undeserved but 
inevitable criticism.
    On the other hand, during the same period, U.S. District Courts 
have successfully prosecuted literally hundreds of terrorists who now 
reside in Federal prisons around the country, keeping all Americans 
safer. Federal courts, including judges, prosecutors, marshals, and 
other court personnel have decades of experience in these cases. They 
have developed a justifiable and universally held reputation for 
fairness, and consequently, they are largely immune to criticism.
    There is also now a large body of law that has been developed over 
the years in the Federal court system. It would take an equal number of 
cases and decades of trials for DOD to match the Federal precedent 
contained in the Federal Reporters.
    Military judges, prosecutors, and defense counsel rotate out of one 
assignment into another every 3 years or so. Without significant 
changes to longstanding DOD personnel policy, none of them will ever, 
ever gain the experience in these cases that is enjoyed by scores of 
their civilian Federal counterparts. We could do that, we could change 
longstanding DOD personnel policy but again, if we did we would have 
the tail of terrorist prosecutions wagging the warfighting dog.
    It is not only unnecessary, it is inappropriate for DOD to operate 
a system of justice in parallel to DOJ. The UCMJ and the courts-martial 
it creates are absolutely necessary to ensure our effective fighting 
force. But for some of the same reasons that the Posse Comitatus Act 
prevents the military from enforcing laws against U.S. civilians, we 
should resist the temptation of using the military to prosecute foreign 
criminals when DOJ can perform that critical function quite well.
    Let us not forget, these are not legitimate warfighters. They are 
common criminals. They are thugs, cowards who target innocent 
civilians. We should treat them as such and not elevate their status to 
that of legitimate enemies. They don't belong in the same category as 
Major Andre or the German saboteurs.
    We don't ask DOJ to fight wars. We shouldn't ask DOD to prosecute 
terrorists.
    If the point of this exercise is to create a court system that will 
ensure convictions of alleged terrorists against whom we don't have 
sufficient admissible evidence, then we have missed the point. You 
can't have a legitimate court unless you are willing to risk an 
acquittal. If you aren't willing to accept the possibility that a jury 
will acquit the accused based on the evidence fairly presented, then it 
isn't really a court. It's a charade.
    The corollary to that is that you can't have a real court if the 
rules of evidence and procedure are so stacked against the defendant 
that he has no real chance to present his case or defend against the 
government's case. The admissible evidence against him based on the 
facts may be so overwhelming that conviction is assured but that must 
be the consequence of facts, not rules of evidence tilted in favor of 
the prosecution.
    Over the years, Federal courts have displayed remarkable ingenuity, 
flexibility, and resourcefulness in prosecuting terrorists. The Federal 
Rules of Evidence and Procedure are sufficiently adaptable to 
accommodate the vagaries of trying those individuals who are captured 
overseas by military personnel in the midst of performing military 
operations. I believe the image of the ``strategic corporal'' having to 
give Miranda warnings after risking his life to break into the bunker 
is a red herring.
    If you as members of this committee believe or suspect that the 
Federal Rule of Evidence or the Federal Rules of Criminal Procedure 
should be amended to accommodate certain cases and situations, it is 
preferable to superimpose modest new rules on an extant, tried and true 
judicial system than to create a whole new system--particularly in 
light of recent efforts.
    It might be wise to set up a task force of experienced judges, 
prosecutors, and defense counsel to make recommendations to Congress in 
this regard.
    However, if we create yet another military commission system that 
``contains all the judicial guarantees considered to be indispensible 
by all civilized peoples'' as required by Common Article III of the 
Geneva Conventions, then we have essentially duplicated our own Federal 
courts. There is no logical reason to create a system that mirrors one 
already in existence and is functioning so well. We should strive for 
the minimum change necessary to accomplish the purpose, not a wholesale 
change to an already effectively functioning system.
    Clearly and undeniably, the administration and this committee are 
dedicated to untying this Gordian knot in a way that serves the very 
best interest of the country. We are now operating under the Military 
Commission Act of 2006 which many find to be badly flawed. I very much 
respect and admire your effort to improve it. My recommendation, 
however, is to repeal it rather than improve it. In the process, I urge 
you to express this body's preference to prosecute alleged terrorists 
in Federal court and thereby demonstrate to the world, friend and foe 
alike, what kind of Justice the United States wishes to export.

    Chairman Levin. Thank you, Admiral, very much.
    General Altenburg.

  STATEMENT OF MG JOHN D. ALTENBURG, JR., USA (RET.), FORMER 
         APPOINTING AUTHORITY FOR MILITARY COMMISSIONS

    General Altenburg. Thank you, Chairman Levin and members of 
the committee.
    Military commissions are an appropriate, long validated, 
constitutional mechanism for law of war violations. Military 
commissions have always adapted to both the operational needs 
of the particular conflict and to the then-existing state of 
criminal law.
    This proposed statute tracks the current state of criminal 
law in its most important respects and codifies or incorporates 
advanced thinking in criminal law since the 1940s use of 
commissions by the United States. This is true, especially in 
areas such as hearsay and self-incrimination, including the 
reliability concern that the Supreme Court has emphasized in 
the last 50 years.
    Our military in the 21st century fights in a more complex 
manner. This means that Congress must forthrightly acknowledge 
how this complexity impacts military commissions. This includes 
evidence gathered by intelligence personnel, not just 
conventional forces, operations and places and under 
circumstances that would not serve our security, diplomatic 
posture, or stability of other nations to be made public. In 
addition, confronting an enemy of uncommon ruthlessness and 
ability to reach anywhere, at any time, making personal 
security of participants in the investigative and trial process 
an especially sensitive and appropriate consideration.
    I applaud the efforts of the committee in proposing this 
amendment to the MCA. I think that there are several reasons 
why these people should be prosecuted at military commissions, 
among them the fact that we're prosecuting them for war crimes 
and not violations of Title 18. They may have also committed 
violations of Title 18, but we're prosecuting them for war 
crimes.
    It is a part of the Commander in Chief's authority to 
prosecute war criminals during a war and just after a war. It 
serves as a deterrent to others. Sometimes we use the word 
``UCMJ'' and we act like it's just court-martial and that 
military commissions are different. The UCMJ includes four 
tribunals. Court-martials are the one we're most familiar with 
and therefore oftentimes we shorthand and say ``UCMJ'' when we 
mean courts-martial.
    But military commissions have been around for a couple 
hundred years and courts of inquiry for well over 100 years, 
and the provoso courts are the least used. I think that's an 
important distinction that we should all keep in mind.
    I would ask the same question that a couple of Senators 
have asked in response to my colleagues' comments, and that is, 
why would we apply domestic criminal law due process for alien 
unlawful belligerents who've abandoned all civility and respect 
for international law?
    Just two things that I'd like to comment on that I think 
need to be addressed. One is, that I believe, because the 
Service courts have the experience of the factfinding role, the 
experience and the expertise honed over years and years, that a 
more appropriate place for the intermediate appeal would be the 
existing Court of Military Commissions Review and not the CAAF. 
The CAAF I'm sure, as an earlier speaker mentioned, certainly 
has the expertise to do the factfinding role. I just think it's 
better placed with the military appellate judges because of 
their experience in that regard. I think it would be somewhat 
onerous to place that on the CAAF. Their experience is with 
criminal law for the most part. Military criminal law is very 
similar to domestic criminal law, and we're now into an area of 
law of war, something that's fairly arcane, in dealing with 
these types of crimes.
    The other thing that I think needs to be addressed is the 
issue of the death penalty. It's somewhat ambiguous in the MCA, 
and I'll just kind of state the scenario. If a detainee wants 
to plead guilty to a capital offense, he can do that. But the 
way the MCA is written, it says that he has to be found guilty 
by a jury, guilty by commissions. There's a way to wordsmith 
that to make sure that it's very clear and that we don't spend 
hours and days litigating at the military commissions 
proceedings whether he really can do that and exactly what that 
means. I'd be happy to submit that in additional comments or in 
response to questions as to what proposed language it would be. 
It would just make it very clear, because I know that 
prosecutors and defense lawyers and judges are trying to 
grapple with that, because some people want to plead guilty to 
a capital offense. Of course, they want to be a martyr for 
their cause and that's another discussion. I think that it 
should be possible for them to plead guilty to a capital 
offense and then be sentenced by the court.
    Thank you, sir.
    [The prepared statement of General Altenberg follows:]
      Prepared Statement by MG John D. Altenburg, Jr., USA (Ret.)
    Chairman Levin, Ranking Member McCain, other distinguished members 
of the Committee, thank you for this opportunity to discuss Military 
Commissions, the Military Commissions Act, and proposed amendments to 
the Military Commissions Act, 2006. Military Commissions are an 
appropriate, long-validated, Constitutional mechanism for Law of War 
violations. U.S. Military Commissions have always adapted to both the 
operational needs of the particular conflict, and to the then existing 
state of criminal law.
    This proposed amendment tracks the current state of criminal law in 
its most important respects, and codifies or incorporates advanced 
thinking in domestic and international law since President Roosevelt's 
World War II military commissions, endorsed by the Supreme Court in 
United States v. Quirin. These advances are most notable in areas such 
as hearsay and self-incrimination, including the reliability concerns 
that the Supreme Court has emphasized since the Military Commissions of 
the 1940s.
    As our Nation fights in a more complex manner, Congress must in the 
21st century give Military Commissions the tools to adapt to 21st 
century opponents. This means that Congress must forthrightly 
acknowledge how this complexity affects our Nation's ability to bring 
war criminals to justice--including through the long validated process 
of military commissions. Concrete areas that require careful 
integration of the truth-seeking function of a system of justice with 
the realities of warfighting include evidence gathered by combat and 
intelligence personnel and Special Operations Forces; operations in 
places and under circumstances that would not serve our security, 
diplomatic posture, or the stability of other nations if made public; 
and confronting an enemy of uncommon ruthlessness with the ability to 
reach anywhere at any time, making personal security of participants in 
the investigative and trial process an especially sensitive and 
appropriate consideration.
    Military commissions historically have been a singular forum, 
repeatedly recognized by statute, international law, and Supreme Court 
decisions as an incident of war, not arising from the judicial power of 
the United States, but firmly within the power and authority of a 
military commander as authorized by Congress. This distinction is 
anything but academic; it is the seminal point from which flowed post-
2001 misunderstandings of military commissions.
    Historical validity aside, the necessity of military commissions in 
the current conflict has been occluded by: (1) the decades during which 
they were not deemed by a military commander to have been necessary for 
a particular conflict or set of circumstances (we did not use 
commissions during the Korean or Vietnam conflicts); and (2) the 
unprecedented evolution in criminal procedure and evidence seen during 
those decades, which complicated the setting in a way that policy 
makers failed to recognize in drafting the President's Military Order 
of November 13, 2001.
    The proposed amendment to the Military Commission Act may 
successfully culminate a process that began in October 2004 in the 
Office of Military Commissions. Several government lawyers, military 
and former military, worked diligently to create a proposed Uniform 
Code of Military Justice amendment (Article 135a) and a proposed Manual 
for Military Commissions. The product of nearly an entire year's work 
by Brigadier General Tom Hemingway, Michael Chapman, Kevin Carter, 
Ronald White, Colonel Lee Deneke, Colonel Wendy Kelly, Colonel Patricia 
Wildermuth, and Mary Alice Kovac was presented for approval by 
appropriate authority in August 2005. If approved and implemented, many 
believe it would have made more likely a Supreme Court decision 
favorable to the government in the Hamdan case. The proposed Article 
135a and Manual for Military Commissions were not favorably considered. 
The Supreme Court's decision in Hamdan led directly to the Military 
Commissions Act. The proposed amendment will finally produce Military 
Commissions procedures that meet all Law of Armed Conflict standards 
and exceed International Law standards for war crimes trials.
    Unprivileged belligerent is a better term, in my opinion, than 
enemy combatant. The proposed definition, in section 948a(7)(a) now 
also includes those who engage in hostilities against our coalition 
partners. This as well is a positive change.
    Section 948c says that ``any unprivileged enemy belligerent having 
engaged in hostilities or having supported hostilities against the 
United States is subject to Military Commissions.'' This language seems 
somewhat inconsistent with 948a(7) language that defines unprivileged 
enemy belligerent as one who ``purposefully and material supports 
hostilities.'' More important, 948a(7)(b) defines unprivileged enemy 
belligerents as those who ``purposefully and materially support 
hostilities,'' which is more expansive and useful and appropriate 
language, in my view.
    I consider the language authorizing a military commission to 
determine its own jurisdiction to be an improvement as well.
    Regarding self incrimination, the focus on ``reliability'' is 
welcome, but it cannot be the sole touchstone without at least some 
clarification. Such statements are routinely admitted into evidence in 
both Federal district court and courts-martial. Therefore Congress may 
want to consider modifying the proposed language so that either side 
can introduce statements for reasons other than their truth. I 
recommend language that considers the totality of the circumstances in 
determining whether the statement is reliable for the purpose for which 
it is offered.
    The hearsay provisions of the proposed legislation are a 
substantial improvement, as they balance the truth-seeking function of 
the right to confront evidence against an accused with the realities of 
the modern battlefield and especially the protracted nature of the 
post-September 11 conflicts. There remain some potential refinements in 
this area. The amendment seems to assume that all statements are taken 
by government agents, which is frequently true, but not always the 
case. Sometimes ``rank hearsay,'' including statements from one 
detainee to or about another may be offered; the defense likely 
requires more flexibility in this regard than does the government.
    Most important, the rule should state clearly the threshold 
requirement that the military judge determine, under the totality of 
the circumstances, that a statement is reliable for the purpose for 
which it is offered. The proposed bill is not explicit regarding this 
factor. The proposed amendment says also that the necessary predicate 
is witness unavailability. This may lead to extensive litigation 
regarding what constitutes unavailability. There may be times when 
justice is served if it's a material fact (an appropriate requirement) 
and in the interests of justice. Where reliability is a required 
consideration, then the judge has more than adequate guidance for 
making fair and appropriate determinations of admissibility.
    The section 949j discovery language is more broad than that 
governing Article III courts. The disclosure obligation for witness 
statements is ``as soon as practicable'' compared to the traditional 
(Federal) practice of disclosing when the witness testifies. It's not 
clear why we would want military commissions to deviate from the 
Federal standard, which is frequently espoused by military commission 
critics. I propose language along the lines of requiring disclosure a 
``reasonable time before the witness testifies''. This proposed 
language is closer to the court-martial norm without unduly burdening 
the prosecution's discovery responsibility.
    More significant is determining what is government evidence and how 
accountable the prosecutors must be when as a practical matter they 
don't know the universe of available evidence, and not all organs of 
government share the prosecutors' interest in trying the cases. The 
prosecution arm of the government is, no doubt, comfortable with 
bearing some of the burden here--but other government agencies may need 
statutory inducement to produce evidence in a timely manner. Still, 
section (b)(4), says, ``the disclosure obligations under this 
subsection encompass evidence that is known or reasonably should be 
known to any government officials who participated in the investigation 
and prosecution of the case. . .''
    I recommend replacing ``and'' after ``investigation'' and before 
``prosecution'' with ``or''--to be clear that prosecutors must examine 
only that which they possess or are able to access. In short, 
prosecutors must have access to the evidence before they can be held 
accountable for its examination and production. This reflects the 
unique context of combat operations evidence collection, which is not 
accomplished by police investigators and crime scene experts who pass 
it to forensic experts through elaborate, precise custody systems. 
Rather, it is most frequently collected by riflemen or intelligence 
operatives whose priorities are safeguarding themselves and others 
while collecting information that may assist their fight against an 
enemy determined to kill them and others. The potential for its 
subsequent use as evidence in a criminal trial is not the paramount 
basis for its collection at the time. This goes to the heart of why 
alleged war crimes should be tried by military commissions that meet or 
exceed all Law of Armed Conflict and other International Law standards. 
The burden must be on the government, but the legislation must be 
realistic in its burden, recognizing that multiple organs of the 
government collect, analyze, and store evidence, often for other than 
law enforcement purposes.
    Regarding supervision of counsel, it may be appropriate, based on 
experience since 2006, to add to Section 949b(a)(2)(C) the following 
language: ``This does not preclude the exercise of appropriate 
supervisory authority over trial or defense counsel.''
    Section 949j (pg. 32): codifies what has been the practice in that 
the Military Judge can authorize the Trial Counsel to provide redacted 
or unclassified summaries of documents to the defense.
    The current statute says that Geneva Conventions are not a ``source 
of rights'' that detainees may invoke, but the new bill says that the 
Geneva Conventions may not be invoked as a basis for a ``private cause 
of action.'' The intent seems to be that an accused may not base a 
civil claim on a Geneva violation, but still permit him to base trial 
motions on asserted Geneva violations. This may be an untenable 
threading of the needle because it may well expose the government to 
liability in areas other than Military Commissions. When in other 
realms individuals, including non-citizens, claim that Geneva or other 
treaties, traditionally considered not to be self-executing, form a 
basis for trial-level relief or in any way are considered to grant 
personal rights rather than binding the government of the United 
States.
    The proposed amendment retains the apparent contradiction of the 
Military Commissions Act that allows one to plead guilty to a capital 
offense but prohibits sentencing to death unless the accused is found 
guilty by the 12 member commission. I propose the following language be 
inserted in the proposed amendment: ``In order to be sentenced to death 
the accused must have been found guilty by commission of members or 
have plead guilty and been found guilty by a military judge.'' This 
language should eliminate the confusion inherent in the Military 
Commissions Act. More important, the proposed amendment does not retain 
the Military Commissions Act language that the death penalty is 
available if the offense carries that punishment under ``this chapter'' 
or Law of War. Furthermore, the amendments should provide a mechanism 
for an accused to plead guilty and choose to be sentenced by the 
Military Judge alone, as is the standard in court-martial practice.
    I recommend that the appellate process delineated in the 2006 
Military Commissions Act be retained in the proposed legislation rather 
than naming the Court of Appeals for the Armed Forces as the 
intermediate appellate court. The Court of Military Commissions Review 
has functioned well since its establishment in the Military Commissions 
Act. The judges who populate this court from the Service Courts of 
Criminal Appeals have extensive experience in the factfinding role. The 
service appellate courts are unique in United States jurisprudence 
because of their factfinding authority. If we are to include the same 
factfinding power we provide for soldiers at the intermediate appellate 
court then we should ensure that the intermediate court is one with the 
expertise and experience to exercise that function.
    The proposed amendment says to assign defense counsel ``as soon as 
practicable''. This is conventionally assumed to be at charging by the 
Prosecution, consistent with military and most public defender 
practices. But there needs to be some flexibility by which Chief 
Defense Counsel can appoint defense counsel earlier--so that, in 
appropriate cases there can be charging negotiations that are 
beneficial to both the defense and the prosecution. Chief Defense 
Counsel authority to appoint defense counsel earlier than the charging 
stage should be limited to occasions that respond to requests from the 
Chief Prosecutor.
    The amendment retains provisions that imply that an accused has the 
option not to appear in court, as section 949a lists presence at trial 
as a ``right'' of the accused. I believe this provision frustrates both 
the delivery of effective justice and the appearance of justice, which 
we hope confidently to portray to the accused, our Nation, and the 
world, whose scrutiny we should welcome. I recognize that requiring an 
accused to appear may lead to disruptive behavior in court. There are 
provisions to remove the accused if the behavior disrupts the process. 
The decision whether or not the accused remains in court after such 
disruptive conduct should be left to the judge; there should be no 
``opt out'' by which the judge permits an accused, perhaps weary or in 
protest, not to appear at a session of court.
    The proposed amendment addresses the right to ``suppress'' 
evidence. I recommend that more appropriate language would be to 
``exclude'' evidence from the factfinder or sentencing authority as a 
sanction for illegal conduct by the government.
    It is encouraging to see Congress actively engaged in improving 
military commissions. There now seems to be a greater understanding 
that we--as a Nation--are challenged by a Law of War problem rather 
than a matter to be addressed solely by domestic criminal law. Military 
commissions historically represented an advance in the law--a 
civilizing, judicial measure, rooted in the due process of the Western 
legal tradition and the principles of restraint, discrimination, and 
accountability of the maturing Law of Armed Conflict. I recognize that 
the proposed amendments are intended to foster those traditions. In 
making fine changes to a system that is functional and just, we must be 
mindful that commissions stand on a distinct legal footing not because 
they are a ``lesser'' form of justice, but because they are uniquely 
able to bring justice in light of factors unique to how we, a nation of 
laws, defend our freedoms, and fight and win our Nation's wars.

    Chairman Levin. Thank you very much.
    Mr. Marcus.

   STATEMENT OF DANIEL MARCUS, FELLOW IN LAW AND GOVERNMENT, 
         WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY

    Mr. Marcus. Thank you, Mr. Chairman. I appreciate the 
opportunity to testify today.
    I do believe there is a role for Article III courts in some 
cases involving some of the Guantanamo detainees and some of 
the other individuals who've been treated as enemy combatants 
at one time or another since September 11. I believe our 
Article III courts have shown themselves able to effectively 
try terrorists in Federal courts in the Moussaoui case, the 
Padilla cases, and some of the earlier cases.
    For example, someone like Padilla or someone like al-Marri, 
who was arrested by law enforcement authorities in the United 
States, far from the traditional battlefield, is an appropriate 
candidate for Article III criminal prosecution.
    I notice that one of the Guantanamo detainees was recently 
transferred to the Federal court system and will be tried in 
the Southern District of New York in connection with crimes 
connected with the bombing of the East Africa embassies in 
1998. I think he is also an appropriate candidate for an 
Article III court because it's not clear that he's 
appropriately treated by a military tribunal since his acts 
were committed at a time when we arguably were not at war with 
al Qaeda in a strict military sense.
    I do believe that, while the Federal courts can try many 
terrorism cases, there are a lot of terrorism cases involving 
the Guantanamo detainees that would be difficult, not 
impossible but difficult, to try in a Federal court. I think 
that an improved military commissions system is an appropriate 
way of trying these defendants.
    I think this committee's bill takes major steps toward 
perfecting the existing military commission system, which was 
already improved significantly by the MCA. But I do think there 
are some additional steps that could be taken and I've outlined 
some of those in my testimony.
    [The prepared statement of Mr. Marcus follows:]
                  Prepared Statement by Daniel Marcus
    Chairman Levin, Senator McCain, and other members of the committee: 
Thank you for inviting me to testify on one of the most important of 
the difficult set of issues facing Congress and the Administration with 
respect to the detainees held at Guantanamo Bay: In what forum should 
detainees who are believed to have committed war crimes be tried--
Article III courts, courts-martial, or military commissions?
    Unlike my colleagues on this panel, I am not an expert on military 
justice. But as a Government official and a law professor, I have been 
following these issues closely for the last six years--first, as 
General Counsel of the 9/11 Commission, and since 2005, teaching 
National Security Law and Constitutional Law at the Washington College 
of Law, American University. Before that, I was for many years a 
partner in the law firm of Wilmer, Cutler & Pickering, and I served in 
the White House Counsel's Office and in several positions at the 
Department of Justice, including Associate Attorney General, from 1998-
2001.
    The questions surrounding detention and trial of the Guantanamo 
detainees have become more complicated than they looked in late 2001 
and early 2002, when the first detainees were captured in Afghanistan 
and sent to Guantanamo. In the wake of the September 11 attacks, 
Congress had quickly enacted the Authorization to Use Military Force 
(AUMF), essentially authorizing the President to conduct an armed 
conflict against al Qaeda and the Taliban. Pursuant to the AUMF, the 
President had sent thousands of U.S. troops to Afghanistan to depose 
the Taliban as the de facto government of Afghanistan and to capture or 
kill the al Qaeda fighters and leadership. While the opponents in this 
armed conflict were not nation-states, the conflict seemed very much 
like a traditional armed conflict or ``war.''
    In the years since then, however, we have come to the realization 
that this is a different kind of war that is not so easy to define or 
limit, territorially or temporally. While the traditional battlefield 
is in Afghanistan (and to some extent, arguably, the adjacent western 
border areas of Pakistan to which al Qaeda and the Taliban have fled), 
al Qaeda continues to operate in other parts of the world, either 
directly or through other, loosely affiliated organizations. It has 
become clear that this conflict is one of indefinite duration, which 
will not end with a truce or surrender. Finally, we have learned that 
even on the Afghanistan battlefield itself, it is not nearly as easy as 
in traditional wars against uniformed members of regular armed forces 
to determine who is and is not an enemy combatant.
    These problems have been compounded, in my view, by some serious 
mistakes and over-reaching by the last administration in the years 
immediately following the September 11 attacks--the reliance on 
strained legal arguments to minimize or avoid entirely the application 
of the Geneva Conventions and the Convention Against Torture; the 
effort to deny the Guantanamo detainees any opportunity to challenge 
the determination that they were enemy combatants; and the creation of 
a system of military commissions that almost no-one outside the 
Administration believed provided anything close to a fair process for 
trying detainees for war crimes. This last mistake has delayed for 
years bringing the Guantanamo detainees to justice for their crimes.
    Thanks largely to the Supreme Court and Congress (in the Detainee 
Treatment Act and the Military Commissions Act (MCA)), there has been 
significant progress in correcting these mistakes and providing a legal 
process for the detainees that can be defended as consistent with the 
basic principles of our military and civilian justice systems. But more 
remains to be done, and there are important decisions that this 
Congress and this Administration still have to make. I congratulate 
this committee for taking the initiative in addressing these issues.
    So, where should we go from here with respect to trials of the 
detainees? Some argue for abandoning the military justice model (if not 
the entire law of war paradigm) and prosecuting the detainees only in 
Article III district courts (or perhaps some new special national 
security court staffed by Article III judges). I believe there is a 
role for Article III courts in some types of cases and that our U.S. 
district courts--in cases such as Moussaoui and Padilla--have shown 
themselves capable of trying major terrorism cases. I also believe that 
it is inappropriate to use military tribunals to try U.S. citizens 
(such as Padilla) or others lawfully in the United States (such as al-
Marri) who are arrested by law enforcement authorities in the United 
States, far from any traditional battlefield. The same is true for some 
of the Guantanamo detainees who were captured, not in Afghanistan, but 
in countries such as Bosnia or Algeria, and whose alleged crimes are 
unrelated to the events of September 11 or the war in Afghanistan. A 
good example is Ahmed Khalfan Ghailani, who was recently transferred 
from Guantanamo to a Federal prison in New York for trial in U.S. 
District Court on charges arising out of his alleged participation in 
the bombing of the U.S. embassies in East Africa in 1998. He is charged 
with a very serious terrorist act, but not one properly regarded as a 
war crime triable by a military commission or court-martial.
    I have become convinced, moreover, that while the Federal courts 
can try many terrorism cases, there are some cases in which it would be 
very difficult to try Guantanamo detainees in Federal court. Of course, 
I am not privy to the evidence that the Government has gathered with 
respect to any detainee. But I gather that there are two main reasons 
why it is difficult to try some detainees in Federal court: First, in 
some cases the key evidence of guilt is statements of the defendant 
that could not be introduced in Federal court because they were made 
without prior Miranda warnings or were the ``fruit of the poisonous 
tree'' of coerced statements. Of course, some of these statements would 
not be admissible under the MCA or this committee's bill, but a 
significant number would.
    Second, and perhaps more important, the more public nature of 
trials in Federal court--where it is extremely rare to close any 
proceedings to the public--and the hearsay rules that apply in Federal 
courts make it very difficult to conduct a trial involving certain 
kinds of highly sensitive national security information. The prime 
example of this is where important evidence against the detainee is 
from an intelligence source whose identity cannot be made public. These 
difficulties are also present, to a large extent, with court-martial 
trials. Under the MCA as it would be amended by this committee's bill, 
however, and under changes in military commission procedures already 
adopted by the new administration, some hearsay evidence found reliable 
by the presiding judge could be admitted. And the greater flexibility 
that the military judge has to close portions of a military commission 
trial (with the defendant and his counsel still present) will enable 
the fair presentation of more sensitive national security information.
    I was initially of the view that it would be preferable to try all 
detainees by court-martial (or in Article III courts)--not because I 
thought military commissions could not be conducted in a fair manner 
that adequately protected the rights of defendants, but because I 
thought that the original military commission regime that was held 
unlawful by the Supreme Court in its 2006 Hamdan decision had given 
military commissions such a bad image around the world that we ought to 
choose some other forum to try the detainees. But I have become 
convinced that an improved system of military commissions, while not 
the ideal choice, is the best--or perhaps one should say the least 
worst--of the alternatives before us for trying many of the detainees.
    In opting for an improved military commission system, I am also 
influenced by the interrelationship of this issue with the very 
difficult issue of indefinite or preventive detention of those 
detainees who cannot be tried or safely released. President Obama came 
into office, it appears, hoping that we could not only close 
Guantanamo, but also try (and convict) or release all the Guantanamo 
detainees. It seems likely, however, that the administration will 
conclude that this cannot be done--that because of evidentiary problems 
and national security sensitivities, there will be some ``guilty'' and 
dangerous detainees who cannot be tried in any forum and who therefore 
should continue to be detained under the law of armed conflict (with 
periodic court review and additional safeguards). Such a longer-term 
detention system may be necessary, but it is certainly undesirable from 
a civil liberties standpoint. One reason I conclude that improved 
military commissions are our best option for trying many detainees is 
that I believe it will result in more detainees being tried, thus 
reducing the number of detainees who continue to be detained without 
trial.
    Finally, let me list some of the important ways that the commission 
system established by the MCA can and should be improved, bringing it 
closer to the standards of courts-martial. (Some of these are already 
addressed in the committee's bill.):

         The overbroad definition of ``enemy combatant'' should 
        be narrowed to be more consistent with the law of armed 
        conflict and the traditional battlefield concept.
         The list of offenses triable by military commissions 
        should be revisited, to assure that it can be defended as 
        consistent with the law of armed conflict. In particular, a 
        fresh look should be taken at whether ``material support of 
        terrorism'' and conspiracy can be deemed war crimes.
         Hearsay evidence should be admissible under more 
        limited circumstances, with the burden on the prosecution to 
        establish the reliability of the evidence.
         Statements obtained as a result of all cruel, inhuman, 
        or degrading treatment, regardless of when that treatment took 
        place, should be excluded. Only statements that meet basic 
        standards of voluntariness should be admitted.
         There should be more robust requirements for 
        disclosure by the prosecution of potentially exculpatory and 
        mitigating evidence to the defense.
         The reviewing court (whether it is the Court of 
        Appeals for the Armed Forces or the Court of Appeals for the 
        District of Columbia Circuit) should have full appellate 
        authority to review the military commission's judgment and 
        findings, comparable to that of a Federal court of appeals 
        reviewing a district court judgment of conviction.
         Habeas actions should be available to defendants in 
        military commission cases to the same extent that they are 
        available to court-martial defendants.

    Thank you for the opportunity to testify. I would be happy to 
answer your questions.

    Chairman Levin. Thank you very much, Mr. Marcus.
    Why is it difficult to try some of or most of the 
Guantanamo detainees in Article III courts?
    Mr. Marcus. I think there are two main reasons and I think 
they were adverted to in the testimony of the first panel. 
There are some Federal court rules with respect to 
admissibility of statements. The Miranda rules, for example, 
the fruit of the poisonous tree doctrine, that would make it 
difficult to admit some statements by detainees that should be 
admitted as reliable, voluntary statements under all the 
circumstances.
    I think I would associate myself with the very interesting 
dialogue between DOJ and DOD representatives and Admiral 
MacDonald about the issue of voluntary statements and the ``all 
of the circumstances'' test. I would align myself with Mr. 
Johnson and Mr. Kris and with the administration, that I think 
we need a totality of the circumstances test, but it has to be 
anchored to voluntariness. I do think the principle in our 
system that confessions should be admitted only if they are 
voluntary is a very important constitutional and policy 
principle and we ought to adhere to it. I think it may well be 
possible, as you and Senator Graham have suggested, to work out 
some language between that of the committee's bill that would 
satisfy these concerns, but I haven't seen the administration's 
language.
    The second reason I think is that in military commissions 
it will be easier to close proceedings to handle classified 
evidence and to handle sensitive national security issues. 
Obviously we don't want completely closed proceedings, but I 
think there's more flexibility in the military commissions 
system to ensure that we can get the national security 
information that we need to convict these guys without 
compromising national security.
    Chairman Levin. General Altenburg, why do we need military 
commissions? Go to some of the practicalities? Then I'm going 
to ask you, Admiral, to comment on their testimony.
    General Altenburg. Senator Levin, we don't need military 
commissions unless we want to prosecute some of these people. 
We can just detain the people who we captured on the 
battlefield and have discussions and debates with international 
legal scholars about, what does this 21st century non-state 
actor paradigm mean for the right under the Geneva Convention 
to detain people you've captured until the war is over if you 
can't really define when the war is over. You're not capturing 
territory, there's no capital to get, so forth and so on.
    We can just detain them and not worry about it.
    Chairman Levin. Why is it desirable from a practical 
perspective?
    General Altenburg. First of all, it's desirable because we 
can show the American people just how bad these people are and 
also we can show the international community just how bad these 
people are.
    The reason we have to have military commissions is, quite 
frankly, some of these people can't be tried in Article III 
courts. There's just not the evidence to try in Article III 
courts. My own view is that alien, unprivileged belligerents 
captured on the battlefield should not be entitled to the 
constitutional protections that American citizens have. I don't 
think we should settle for some second-rate system, but in my 
mind the MCA together with what you've put together in the last 
few weeks exceeds all international standards. It certainly 
exceeds anything that's being done at The Hague.
    One of the great failings several years ago in our 
government was in failing to educate the public as to what the 
standards are and what is at stake that the law of war applies. 
Instead, critics have been able to define the terms of the 
debate and the debate has been framed in the context of 
domestic criminal law. That's not what the debate should have 
been about. There were many issues to debate--How do you tell 
when the war is over? What do we do about non-state actors? How 
do we characterize them? There were lots of things to debate.
    Senator, I know you've probably heard before the comment 
that throughout the Vietnam war the U.S. Government's position 
was consistent with regard to the people that were captured and 
kept by the North Vietnamese. That position was: You take care 
of them. Even though you're not a signatory to the Geneva 
Conventions, we expect you to treat them with dignity and 
respect. When the war is over, you will return them to us.
    The U.S. Government, Democratic and Republican, never said: 
When do they get a lawyer? When do they get a trial? How can 
you hold them? This isn't fair. That was never an issue. We 
never heard anybody 7 or 8 years ago talking about that and 
educating our public that that's what the standard should be, 
and not domestic criminal law.
    Chairman Levin. General, you've said that these procedures 
as we've drafted them exceed the procedures at The Hague in 
terms of protection for people. You've also indicated that you 
have a couple suggestions that you've made relative to our 
language. Other than those two suggestions, do you believe this 
is the right direction for us to go as we've drafted it?
    General Altenburg. Yes, Senator I do.
    Chairman Levin. Now, Admiral Hutson, let me put the 
question to you a little more precisely. We've had witnesses, 
not just today but long before today, that point to the 
implausibility of some of the procedures being provided to 
detainees. These include Miranda warnings to prisoners that are 
captured in the course of hostilities, the impracticability of 
documenting the chain of custody for physical evidence 
collected on the battlefield, and the difficulties posed by the 
need to use highly sensitive national security information, 
including evidence from intelligence sources whose identity 
cannot be made public.
    Tell us why is it not appropriate to use military 
commissions, providing those commissions meet the standards 
that the Supreme Court has set out in Hamdan?
    Admiral Hutson. Mr. Chairman, I'm not sure that it is 
inappropriate to use military commissions. I'm only suggesting 
that I think that the much better avenue is to use the tried 
and true U.S. district court system, the Federal system, that 
has tried many, many, many terrorists quite successfully over 
the years. I think fundamentally what this debate comes down to 
for me is that I think I have more faith in the flexibility and 
adaptability of the Federal courts than others perhaps have.
    Miranda is a judge-made law. The word ``Miranda'' is no 
place in the Constitution. Voluntariness has a place in the 
Constitution. I think that U.S. district courts are going to be 
fundamentally capable of dealing with the vagaries of those 
issues, and they are not going to, as somebody suggested 
earlier, require the soldier to give Miranda rights after he 
breaks down the door and holds somebody at gunpoint. That's not 
the mission. It's not a law enforcement mission. At that point 
it's not an intelligence-gathering mission. That's all part of 
the war.
    I don't think that the Federal Rules of Evidence or the 
Federal Rules of Criminal Procedure are going to require that. 
Now, if I am wrong about that I would urge that this 
committee--and the Judiciary Committee I suspect would have a 
dog in that fight--might want to look at those rules and make 
modest changes to the extent you feel it's necessary, rather 
than creating this whole parallel system, because this whole 
parallel system to the extent it complies with Common Article 
III and provides all the judicial guarantees considered to be 
indispensable by civilized people, then we've duplicated to a 
large extent the Federal court system and there's just no 
reason to do that.
    Moreover, I think you lose a lot of expertise and 
experience and precedent. You're going to bring down on the 
shoulders of the U.S. Armed Forces a lot of criticism, because 
we've tried this twice before and just as surely as God made 
little green apples, this process is going to be criticized. 
Fairly or unfairly, it's going to be criticized by appellate 
lawyers, by media, by critics.
    The military doesn't need it. DOJ won't have to endure it. 
We'll end up with the world being preoccupied not with the 
crimes of the terrorists, but with the perceived alleged 
deficiencies in our system. I'd just rather use the system 
that's out there and has worked so well over the years.
    Chairman Levin. I think a parallel system has existed for a 
long time. This is not a creation of a parallel system.
    Senator Graham.
    Senator Graham. Admiral Hutson, I have a lot of respect for 
you and we've had a lot of debates about this, but I'm going to 
be very blunt with you. On July 12, 2006, you came before the 
House and the Senate and you urged us to use the UCMJ as the 
model, and you said: ``I was an early supporter of the concept 
of military commissions and their use in the war on terror. I 
believed then and I still believe now that they are 
historically grounded and the proper forum to prosecute alleged 
terrorists.'' You submitted to the committee changes to the 
UCMJ that you thought were practical.
    What's changed?
    Admiral Hutson. I think I was an early supporter of 
military commissions, before we actually put flesh on the 
bones. I was convinced in those days, quite frankly, that if 
you populated commissions with people like John Altenburg they 
were going to fly, it was going to be great. As it turned out, 
they weren't. We have been here now for how many years, and 
we've tried two cases.
    Senator Graham. Yes, but my point is that you said that the 
UCMJ should be the starting point and that you believed that 
the military system was a sound way to try terrorists, and you 
suggested to Congress that you would deviate from the UCMJ, but 
only when necessary. Quite frankly, I agree with you. I do not 
agree with you now when you say that we should abandon the 
military commission as an option. I do believe, as the other 
two witnesses have indicated, that it has a very strong role to 
play in this fight we're in, and historically it's been used in 
the past.
    I would like to submit, Mr. Chairman, the testimony of 
Admiral Hutson from July 12, 2006, to the House.
    Chairman Levin. That'll be received.
    [The information referred to follows:]
      
    
      
    
    
      
    Senator Graham. I don't want to belabor the point. What 
we're trying to do is find a way to make the commissions as 
effective as possible. Let's get back to this idea about what 
Senator Reed said, who is a dear friend, if we looked at every 
detainee as a common criminal. Mr. Marcus, as a domestic crime, 
what legal theory would we have to hold someone indefinitely if 
they were all viewed as a domestic criminal law prism? How 
could you do that?
    Mr. Marcus. Senator, I don't think there is any existing 
authority. I'm not sure there should be.
    Senator Graham. Mr. Chairman, it would be the biggest 
mistake this country could make, to use the criminal model, but 
yet still hold people indefinitely without trial. I do not 
believe that is a choice we have to make, but if we're going to 
view these people as common criminals across the board, then 
we've lost the ability to use military law, which would allow 
detention. Do you agree, if you use the law of armed conflict 
you could detain someone indefinitely?
    Mr. Marcus. Yes, I do, Senator, subject to the caveat of 
Justice O'Connor's opinion in the Hamdi case, saving the issue 
of forever.
    Senator Graham. General Altenburg, in the Hamdi case 
Justice O'Connor said you have to have something akin to 
Article 5 under the Geneva Convention to make the initial 
determination. Under the Geneva Convention, all that's required 
under Article 5 to determine status is an independent tribunal; 
is that correct?
    General Altenburg. Yes.
    Senator Graham. In the battlefield world that could be one 
person. Is that right, Admiral Hutson?
    Admiral Hutson. Yes, I think that's right.
    General Altenburg. Senator, under the Geneva Convention 
that's true. The United States, however, has implemented it so 
that it requires three officers. You cannot, for example, use 
just one officer.
    Senator Graham. Okay, so it's a three-officer decision. The 
point I'm trying to make is that I don't want to use the 
Article 5 dynamic because, Admiral Hutson, you said before, 
this is a war without end. We're going to need something new. 
It goes back to Senator Udall's statement, we have to come up 
with a hybrid system.
    For those people that we're not going to try or be able to 
try, we're going to have to do something beyond Article 5. 
That's where I think civilian courts under habeas play a very 
important role. I want to make sure we preserve that.
    Admiral Hutson. I think we've already, in some respects, 
made a decision that they're criminals, in the sense that we're 
prosecuting them in the first place. First of all, I don't 
think you have to make the choice of prosecuting them or 
holding them. If you want to hold them, you can hold them.
    Senator Graham. Under what theory?
    Admiral Hutson. Under the theory that they are prisoners 
presumably caught in the war. But in World War II, in Korea, 
and in Vietnam, we didn't prosecute Hitler's driver.
    Senator Graham. Right.
    Admiral Hutson. We held him if we had him, until the 
cessation of the hostilities.
    Putting aside Khalid Sheikh Mohammed and people like that, 
once you decided that you're going to prosecute somebody like 
Hicks, you've already in my mind made the decision that he's a 
criminal.
    Senator Graham. A criminal under the law of armed conflict. 
The point I'm trying to make is that domestic criminal law 
applied to the detainee population would not allow this Nation 
to honorably hold someone indefinitely. Do you all agree with 
that?
    General Altenburg. I do.
    Admiral Hutson. I do, yes, sir.
    Mr. Marcus. Yes, sir.
    Senator Graham. Do any of you doubt that some of the people 
being held at Guantanamo Bay, if released tomorrow, would go 
back to killing Americans?
    General Altenburg. I agree with that statement.
    Senator Graham. Admiral Hutson?
    Admiral Hutson. I haven't looked at their files, but it's 
certainly possible. I would presume that would be the case.
    Senator Graham. I'll just end with this, Mr. Chairman. I 
want to compliment this committee. I think you have taken a 
very reasoned approach to military commissions. They're 
historically valid. The Supreme Court has told us how they 
should be formed. What we are doing with this bill, in my 
opinion, is setting a standard beyond what international law 
would require if they were brought to The Hague and is 
something the Nation can be proud of. I don't think we've 
weakened ourselves at all. I think the extra process that we're 
providing these detainees will confer a legitimacy to the 
trials that is necessary for us to win this war. I think we're 
very close to producing a product the Nation can be proud of, 
and I've enjoyed working with you.
    Chairman Levin. Thank you very much, Senator Graham, for 
all the energy and effort and experience that you've put into 
this effort. It's been invaluable.
    Senator Begich.
    Senator Begich. Mr. Chairman, thank you very much. Thank 
you, Mr. Chairman and Senator Graham, for your work on this.
    I have some clarification questions. Admiral Hutson, I'm 
following up on what Senator Graham said. In 2006 you made some 
comments in regards to the commission and the concept of the 
commission with some recommendations. Then in your explanation 
that you just gave you indicated you supported the concept if 
it would have had certain people on it, and then you kind of 
stopped there in your explanation.
    I'm trying to find out the difference from then to now, so 
I understand. Then I have another follow-up for you.
    Admiral Hutson. I think the difference is time. We can't 
walk that cat back. We've tried this twice. It's been roundly 
criticized. I very much admire the work that this committee has 
done with this proposed legislation. The question is what do we 
get out at the other end of the process, and I have to say that 
I've changed my mind. I've come to believe that the Federal 
courts have demonstrated over the years their ability to do 
this.
    As I said before, I worry about the criticism that it's 
going to bring on the military. We're asking the military to 
try to be the organization responsible for prosecuting the 
worst criminals, among the worst criminals in our Nation's 
history. That's just not part of DOD's mission. I think it's a 
distraction that is unnecessary, given the fact that we have 
this well-regarded DOJ and Federal court system.
    Senator Begich. Let me ask you this. First a comment. I 
don't worry too much about criticism for DOD or others. It's 
life. No matter what you make, in decisions you're going to get 
criticized for something, even if you do something that you 
think is very well intended. That's the way life is and I think 
DOD has withstood criticism on many fronts over the decades and 
I'm not too worried about that. That shouldn't be a reason why 
we design policy, if you're going to get criticized or not.
    Do you then believe that all detainees should go through 
the Federal court system and there should be no commission of 
this kind or any element of this? When I say ``this,'' in this 
situation that we're in now or any future situation in any 
conflict?
    Admiral Hutson. I was gratified when I heard Jeh Johnson 
say--although not everybody was--that there was an 
administration preference for Article III courts. I'm not 
saying that I can't conceive of a situation in which the 
military commission would be appropriate. I don't see these 
terrorists or the alleged terrorists as being warriors or 
combatants. I see them as being criminals and thugs that sort 
of mindlessly and heedlessly commit war crimes. I'd prosecute 
them as criminals.
    Senator Begich. I want to make sure we're on the same page 
with what I'm hearing and what you're saying. That is, in this 
situation the commission is not necessarily the best idea. You 
did not rule out that in other conflicts in the future a 
commission may not be a bad idea.
    Admiral Hutson. No, absolutely.
    Senator Begich. Then why not just set it up now? Let's just 
do it. Your earlier argument was we've tried this, gone down 
this path twice, and it didn't work, and you kind of wrote it 
off. Now you've said that it's okay maybe in the future with 
some other conflict, that may not be determined yet. Why not 
just set it up? We have a good format now. Let's just do it.
    Admiral Hutson. I didn't want to get into that because it's 
not a bad argument. Just once I've set it up I wouldn't use it 
unless we're talking about Himmler and Goering.
    Senator Begich. My thought on this is--and I have listened 
to the chairman explain this to me in a variety of ways, most 
recently in one of our committee meetings--I'm convinced that 
it seems to be a logical approach. I'm struggling on your 
rationale why it isn't in this situation. I guess I would just 
respectfully disagree. But I appreciate your comments.
    To the other two, I don't know if you have any comments. 
I'm just trying to get clarification. I don't know if you two 
have any additional comments.
    Mr. Marcus. I would just say it's an interesting dialogue. 
There is a real debate as to whether we should treat the 
situation we're in as an armed conflict or whether we should 
treat it as a law enforcement, criminal law matter. I think 
Congress made the decision in September 2001 to treat this as 
an armed conflict, to authorize the President to use military 
force.
    As I said in my prepared statement, we do have to take 
account of the fact that this is not a traditional war and 
that's why I think the committee has taken some steps, by 
changing the definition of ``enemy combatant,'' ``unlawful 
enemy combatant,'' from the way it was in the MCA, to try to 
limit the scope of the armed conflict approach to this.
    I think as long as we're in an armed conflict authorized by 
Congress it's appropriate to use the military justice system to 
prosecute people for war crimes.
    Senator Begich. Thank you very much.
    General?
    General Altenburg. Senator, I think that the fact that we 
cherish our military and what our military does for this 
country traditionally, and especially today, can lead us astray 
in trying to ennoble all people that are warriors or consider 
themselves warriors around the world. There's lots of bad 
soldiers in lots of countries and they're still protected by 
the law of war and they're still treated as soldiers.
    My good friend Dean Hutson I think misses the mark a little 
bit when he talks about how he doesn't want to give them credit 
for that or he doesn't want to somehow ennoble them by 
considering them warriors. He's right that they're criminals. 
They're war criminals. He's right that they should be 
disparaged and that they're despicable and all of that. But 
still, based on what they've done, they have made themselves 
into soldiers and they made themselves into, quite frankly, a 
formidable enemy of this country. That's why I think that the 
use of military commissions and the use of military law is not 
only consistent, but paramount and should be used.
    I agree that the Article III courts where they can be used 
may be appropriate, especially where you have Title 18 offenses 
and you don't have war crimes. I think it's an important tool 
for this government and that they should use military 
commissions in the context of this war.
    Senator Begich. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Begich.
    I think Senator Begich's point is a critical one here, 
that, regardless of whether or not people think that most or 
all of the detainees should be tried in Article III courts, 
we're not addressing that issue in this legislation. We are 
trying to reform our military commission law so that it passes 
muster in the Supreme Court. That's our goal.
    We're not deciding here where people would be tried, 
whether Guantanamo or here. We're not deciding whether or not 
they be tried by military commission or Article III courts. 
What we are doing is what I think everybody really wants us to 
do, including you, Admiral, which is to have procedures here 
which will pass muster. You very forthrightly acknowledged in 
your answer to Senator Begich, I thought, exactly that point. 
That's what our goal is here.
    It can be argued elsewhere about Guantanamo or here. If 
you're going to have Article III trials, you clearly have to 
have those trials here in the United States, whether it's 10 
percent, 30 percent, 70 percent. Whatever the percent is of 
people held in Guantanamo, you cannot empanel juries for 
Article III crimes down in Guantanamo. It's not practical to do 
it.
    There's many reasons why we have to reform these procedures 
so that they pass muster and we're going to continue to make 
that effort.
    We thank the three of you for your contribution to that 
effort. You have differences of opinion, obviously, but they're 
all valuable to us. If there are any suggested changes in the 
language that you have specifically, other than the ones that 
you may have addressed here today, feel free to get those to us 
this week for the record because we're going to be taking this 
bill to the floor next week.
    We also have a written statement that's been presented to 
the committee from Professor David Glazer, Loyola Law School in 
L.A.; an article prepared by retired Federal Judge Patricia 
Wald for the National Institute of Military Justice. These 
materials will also be included in the record.
    [The information referred to follows:]
      
    
      
    
    
      
    Chairman Levin. Any additional questions, Senator Begich?
    Senator Begich. No, thank you.
    Chairman Levin. If not, again with our thanks, we will 
stand adjourned.
    [Questions for the record with answers supplied follow:]
             Questions Submitted by Senator Daniel K. Akaka
                            hearsay evidence
    1. Senator Akaka. Mr. Johnson and Mr. Kris, President Obama 
announced recently, on May 15, 2009, that he will revive the military 
commission system to prosecute Guantanamo (GTMO) detainees. Prior to 
the President's announcement, it was reported that the administration 
had expressed concerns that obstacles could be raised by Federal judges 
to prevent the prosecution of some of the Guantanamo detainees, 
specifically by barring the use of hearsay evidence gathered by 
intelligence agencies and the prosecution of detainees who had been 
subjected to harsh interrogation methods. Are the administration's 
reported concerns valid?
    Mr. Johnson. Pursuant to Executive Order 13492, we have assembled 
an interagency team of personnel who are carefully reviewing each 
detainee's file to assess whether or not prosecution is feasible. To 
date, our team has reviewed over half of the cases, and a significant 
number of them have been referred to a joint Department of Justice 
(DOJ) and Department of Defense (DOD) prosecution team for potential 
prosecution in either civilian court or military commission. There are 
a number of factors that go into the decision as to the best forum for 
prosecution, which are detailed in the attached protocol (see Annex A) 
that has been agreed to by DOJ and DOD. As the President has made 
clear, we do not intend to rely on any statements obtained through 
torture or cruel, inhuman, or degrading treatment. Admission of hearsay 
will have to meet the hearsay standards applicable in Federal courts or 
military commissions. See, e.g., Fed. R. Evid. 801-807;  949a(b)(3) of 
section 1031 of the 2010 National Defense Authorization Act (NDAA) 
(passed the Senate on July 23, 2009).
    Mr. Kris. Pursuant to Executive Order 13492, we have assembled an 
interagency team of personnel who are carefully reviewing each 
detainee's files to assess whether or not prosecution is feasible. To 
date, our team has reviewed over half of the cases, and a significant 
number of them have been referred to a joint DOJ and DOD prosecution 
team for potential prosecution in either civilian court or military 
commission. There are a number of factors that go into the decision as 
to the best forum for prosecution, which are detailed in the attached 
protocol (see Annex A) that has been agreed to by DOJ and DOD. As the 
President has made clear, we do not intend to rely on any statements 
obtained through torture or cruel, inhuman, or degrading treatment. 
Admission of hearsay will have to meet the hearsay standards applicable 
in Federal courts or military commissions. See, e.g., Fed. R. Evid. 
801-807;  949a(b)(3) of section 1031 of the 2010 NDAA (passed the 
Senate on July 23, 2009).

                               post-trial
    2. Senator Akaka. Mr. Johnson and Mr. Kris, if the Federal 
Government's ability to prosecute the detainees is constrained, and the 
detainees are set free because they are either acquitted or never put 
on trial, will the detainees be able, as some have asserted, to settle 
anywhere in the Nation and presumably continue to plot to do harm to 
its citizens and institutions?
    Mr. Johnson. No. We intend to use all lawful and appropriate means 
to protect the American people. As the President stated in his National 
Archives address on May 21, 2009, although we are going to exhaust 
every avenue that we have to prosecute those at Guantanamo who pose a 
danger to our country, there may ultimately be a category of Guantanamo 
detainees ``who cannot be prosecuted for past crimes,'' but ``who 
nonetheless pose a threat to the security of the United States'' and 
``in effect, remain at war with the United States.'' For the detainees 
at Guantanamo, the President has stated that ``[w]e must have clear, 
defensible, and lawful standards'' and ``a thorough process of periodic 
review, so that any prolonged detention is carefully evaluated and 
justified.'' Any such detention will be based on authorization from 
Congress, i.e., the 2001 Authorization for Use of Military Force 
(AUMF). As the Supreme Court held in Hamdi v. Rumsfeld, 542 U.S. 507 
(2005), and as the administration has explained in its filings in 
recent habeas cases, the detention authority Congress has conferred 
under the AUMF should be informed by the laws of war, which have long 
permitted detention of enemy forces for the duration of the armed 
conflict to ensure that they do not return to the fight.
    Mr. Kris. No. We intend to use all lawful and appropriate means to 
protect the American people. As the President stated in his National 
Archives address on May 21, 2009, although we are going to exhaust 
every avenue that we have to prosecute those at Guantanamo who pose a 
danger to our country, there may ultimately be a category of Guantanamo 
detainees ``who cannot be prosecuted for past crimes,'' but ``who 
nonetheless pose a threat to the security of the United States'' and 
``in effect, remain at war with the United States.'' For the detainees 
at Guantanamo, the President has stated that ``[w]e must have clear, 
defensible, and lawful standards'' and ``a thorough process of periodic 
review, so that any prolonged detention is carefully evaluated and 
justified.'' Any such detention will be based on authorization from 
Congress, i.e., the 2001 AUMF. As the Supreme Court held in Hamdi v. 
Rumsfeld, 542 U.S. 507 (2005), and as the administration has explained 
in its filings in recent habeas cases. the detention authority Congress 
has conferred under the AUMF should be informed by the laws of war, 
which have long permitted detention of enemy forces for the duration of 
the armed conflict to ensure that they do not return to the fight.

    3. Senator Akaka. Mr. Johnson and Mr. Kris, will a detainee who is 
either acquitted or not put on trial go straight from the chambers of a 
Federal judge to that of an immigration judge?
    Mr. Johnson. We intend to use all lawful and appropriate means to 
protect the American people. The authority to detain individuals under 
the immigration laws pending their removal from the United States, 
particularly where they pose a threat to national security, is one (but 
only one) mechanism that may be relied upon, if necessary, to ensure 
that detainees will not endanger our citizens.
    Mr. Kris. We intend to use all lawful and appropriate means to 
protect the American people. The authority to detain individuals under 
the immigration laws pending their removal from the United States, 
particularly where they pose a threat to national security, is one (but 
only one) mechanism that may be relied upon, if necessary, to ensure 
that detainees will not endanger our citizens.
                                 ______
                                 
               Questions Submitted by Senator John McCain
                    overview of military commissions
    4. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, I have a long record 
expressing my support for military commissions as the correct forum for 
trying detainees for alleged violations of the law of war. That said, 
trials under the system established by Congress in the fall of 2006 
have not gone forward rapidly and there have been a number of issues in 
implementing the system that have led to delays. Are military 
commissions a viable forum for trying detainees alleged to have 
committed war crimes?
    Mr. Johnson. Yes. As the President indicated in his May 21 National 
Archives speech, reformed military commissions should be available for 
prosecuting law of war violations. We appreciate that the Senate, on a 
bipartisan basis, has undertaken the initiative to reform military 
commissions by amending the Military Commissions Act (MCA) of 2006, and 
section 1031 of the 2010 NDAA passed by the Senate on July 23 
identifies many of the key elements we believe are important to further 
improve the military commissions process. We are confident that through 
close cooperation between the administration and Congress, reformed 
military commissions can emerge as a fully legitimate and sustainable 
forum.
    Mr. Kris. Yes. As the President indicated in his May 21 National 
Archives speech, reformed military commissions should be available for 
prosecuting law of war violations. We appreciate that the Senate, on a 
bipartisan basis, has undertaken the initiative to reform military 
commissions by amending the MCA of 2006, and section 1031 of the 2010 
NDAA passed by the Senate on July 23 identifies many of the key 
elements we believe are important to further improve the military 
commissions process. We are confident that through close cooperation 
between the administration and Congress, reformed military commissions 
can emerge as a fully legitimate and sustainable forum.
    Admiral MacDonald. Yes Senator; in my personal view Military 
Commissions are a viable and necessary forum for trying detainees 
alleged to have committed war crimes. I believe that the Military 
Commissions rule changes recently implemented within the executive 
branch and the statutory changes now under consideration in Congress 
will improve the Military Commissions process. However, I also believe 
that we need to fully invest resources--fiscal and personnel--to ensure 
that Military Commissions go forward in the interests of justice. In my 
view, this is our last and best opportunity to implement a Military 
Commissions system that will promote respect for the laws of war and 
provide justice for the innocent victims of war; while also affording 
accused war criminals the judicial guarantees that are recognized as 
being indispensible to civilized peoples.
    Admiral Hutson. They are in theory but have not been in practice. 
Unfortunately, we are now at a point where they would not be seen as 
being legitimate by most observers even if they are revamped and 
improved.
    General Altenburg. Yes.
    Mr. Marcus. Military commissions, with improved procedures that the 
Committee has under consideration, are a viable forum for trying many 
of the GTMO detainees for war crimes. In some cases, however, Federal 
courts are a more appropriate forum--e.g., where detainees are 
prosecuted for crimes committed before September 11, 2001.

    5. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, what have been the 
major reasons why military commission trials have taken so long?
    Mr. Johnson. Only three commission cases have been completed to 
date. There are several explanations for this, including the Supreme 
Court decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (see Annex 
C), which necessitated a restart of the process (including dismissal 
and refiling of all charges), resourcing issues with respect to full-
time agents, paralegals, attorneys, and military judges, and the need 
for travel to and from the trial location at GTMO.
    We are working to ensure that adequate resources are devoted to the 
commission process--for prosecution, defense and judicial functions--so 
that any commission proceedings will be fair, thorough and efficient.
    Mr. Kris. Only three commission cases have been completed to date. 
There are several explanations for this, including the Supreme Court 
decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (see Annex C), 
which necessitated a restart of the process (including dismissal and 
refiling of all charges), resourcing issues with respect to full-time 
agents, paralegals, attorneys, and military judges, and the need for 
travel to and from the trial location at GTMO.
    We are working to ensure that adequate resources are devoted to the 
commission process--for prosecution, defense, and judicial functions--
so that any commission proceedings will be fair, thorough, and 
efficient.
    Admiral MacDonald. In my personal view, the delay has been caused 
by a combination of factors, including flaws in the original 
Commissions Order and its implementing rules of evidence and procedure; 
defects in structure and organization; shortcomings in fiscal and 
personnel investment at both the investigative and trial level; legal 
uncertainty stemming from Habeas litigation and in particular the 
aftermath of the Hamdan decision, which essentially required a reset of 
the entire process; and finally, the unique nature of the enemy we 
face--a worldwide network of non-State actors who, by definition, 
choose terrorism and reject the fundamental notion that the means and 
methods of warfare must be limited, by law and humanity, to protect the 
innocent, prevent unnecessary suffering, and promote a just and lasting 
peace. This new type of war has presented complex legal and policy 
challenges to the political branches of our Government and the Courts.
    Admiral Hutson. We initially tried to reverse engineer the process 
by starting at ``conviction'' and work backward to ensure that result. 
That didn't work but we weren't willing to start fresh and create a 
system that would work.
    General Altenburg. Implementing regulations for the MCA were not 
completed until April, 2007. At that time the convening authority began 
referring cases to trial. Three cases were completed in 2008, and at 
least three more would have been completed in 2009 if the new 
administration had not directed a halt to the proceedings. U.S. v. 
Khadr was set for trial in January 2009 (witness travel was scheduled 
for Inauguration weekend); U.S. v. al Darbi was set for July, 2009; and 
U.S. v. Ghalaini was set for September 2009. Numerous other cases were 
approaching trial, including the trial of the five September 11-related 
detainees. About 20 cases had been charged, and the prosecution 
intentionally withheld charging cases between November and January to 
avoid the appearance of manipulating the commission process. All of the 
cases referred to Military Commissions involve complex criminal 
litigation for which timelines of 1-2 years would be common in Article 
III courts. The novelty of the new MCA necessarily added time to the 
initial cases as the legality of the forum and its procedures were 
properly, repeatedly, and creatively challenged by defense attorneys. 
It is important to remember in this context that it took the Article 
III courts nearly 5 years to complete the prosecution of Zacharias 
Moussaoui; that case was ultimately resolved by a guilty plea.
    Mr. Marcus. The main reason for the unfortunate delay in bringing 
detainees to trial for war crimes was the last administration's 
creation of a commission system that was woefully lacking in 
fundamental fairness. This led to litigation challenging the legality 
of the commission system that resulted in the Supreme Court's Hamdan 
decision and Congress's subsequent enactment of the MCA of 2006. While 
the MCA improved the procedures substantially, experience since then 
has shown, as the committee has recognized, that additional procedural 
improvements are needed.

    6. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, have the issues 
contributing to delays involved the MCA itself, policy decisions 
implementing it, or other issues such as resources provided to 
prosecutors and defense counsel, and the difficulties raised by the 
amount of classified evidence?
    Mr. Johnson. Please see the answer to question 5. Additionally, we 
believe that the proposed amendments in section 1031 concerning 
classified evidence will make commissions proceedings more efficient.
    Mr. Kris. Please see the answer to question 5. Additionally, we 
believe that the proposed amendments in section 1031 concerning 
classified evidence will make commissions proceedings more efficient.
    Admiral MacDonald. Please see my previous answer. With regard to 
the volume of classified evidence, although it has resulted in some 
delay, that factor is not significant, in my view, compared to the 
factors mentioned in my preceding answer.
    Admiral Hutson. I think all of those factors have contributed to 
the delays.
    General Altenburg. I do not believe lack of resources has 
significantly delayed the proceedings. There have been delays in 
providing relevant discovery to the defense, largely created by the 
policies of the intelligence agencies; e.g., classifying all statements 
by High Value Detainees as TS/SCI when they obviously contain no 
national security information, and reluctance by the intelligence 
agencies to provide necessary discovery to properly cleared defense 
counsel. These issues generate lengthy litigation before the Military 
Judges. At the time the Executive order stayed military commissions, 
DOD had not only substantially increased staffing for both prosecution 
and defense, but also had given the Chief Prosecutor and Chief Defense 
Counsel the discretion to approve or disapprove JAG candidates offered 
to them by the Services. This screening process greatly improved the 
overall experience level and quality of counsel being assigned to 
commissions.
    Mr. Marcus. See answer to question 5. I am not in a position to 
comment on resource issues. There is no question that the problems of 
dealing with classified evidence have contributed to delays, requiring 
difficult choices for prosecutors as to what charges to bring.

    7. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, what aspects of the 
MCA would you highlight as issues that should be reviewed or changed in 
terms of fairness and efficiency?
    Mr. Johnson. As this committee has recognized on a bipartisan 
basis, commissions and the MCA should be reformed. In May, the 
administration announced five changes to the rules for military 
commissions that we believe go a long way towards improving the 
process. We appreciate that the Senate, on a bipartisan basis, has 
further undertaken the initiative to reform military commissions by 
amending the MCA of 2006, and section 1031 of the 2010 NDAA passed by 
the Senate on July 23 identifies many of the key elements we believe 
are important to further improve the military commissions process. 
There are additional modifications we would like to see to the Senate 
bill, and we are working with Congress and staff on these 
modifications. Specifically, the administration proposes the following:
       
    
       
    
    
      
    Mr. Kris. As this committee has recognized on a bipartisan basis, 
commissions and the MCA should be reformed. In May, the administration 
announced five changes to the rules for military commissions that we 
believe go a long way towards improving the process. We appreciate that 
the Senate, on a bipartisan basis, has further undertaken the 
initiative to reform military commissions by amending the MCA of 2006, 
and section 1031 of the 2010 NDAA passed by the Senate on July 23 
identifies many of the key elements we believe are important to further 
improve the military commissions process. There are additional 
modifications we would like to see to the Senate bill, and we are 
working with Congress and staff on these modifications. Specifically, 
the administration proposes the following:
      
    
      
    
    
      
    Admiral MacDonald. There are three areas of the MCA that, in my 
view, should be reviewed further: Appellate review standards, 
classified information procedures, and the admissibility of statements 
made by an accused. Before providing my recommendations on these three 
areas, I would like to offer the following information by way of 
background.
    The MCA and the rules initially promulgated thereunder contained 
provisions which were questioned in terms of both fairness and 
efficiency. The hearsay rule that placed the burden of establishing 
unreliability on the opponent was roundly criticized as forcing an 
opponent to establish a negative, and was the reverse of the standard 
generally recognized in domestic courts, where the proponent of any 
evidence generally must establish it is sufficiently reliable for 
admission. The standards for discovery were generally considered 
insufficient, in that the rules required disclosure of exculpatory 
evidence, but left unaddressed evidence that might mitigate the degree 
of guilt or the sentence of the accused or that might serve to impeach 
a government witness. The provisions addressing classified evidence 
permitted a military judge to determine reliability of underlying 
evidence, and redact classified sources and methods, preventing a 
defense counsel from obtaining even a substitute for the redacted 
materials. Counsel rights for the accused did not provide for a right 
to a military counsel of the accused's own selection, if reasonably 
available. Commissions were forbidden from determining whether a 
particular accused was subject to the jurisdiction of the commissions, 
instead forced to rely upon a determination made by the Combat Status 
Review Tribunal (CSRT). Appellate review was not as robust as that 
provided in courts-martial, limiting review to only legal review rather 
than factual and legal review, as is the norm for courts-martial. The 
rules regarding coerced statements contained the facially offensive 
provision that would permit the introduction of statements obtained by 
cruel, inhuman or degrading treatment so long as the statement was 
obtained before the enactment of the Detainee Treatment Act, and so 
long as the statement was reliable and in the interests of justice. 
Finally the rules addressing classified information failed to provide 
clear guidance to military judges and practitioners regarding the 
standards for discovery and the procedures to be used in obtaining ex 
parte review of petitions from the government. The rules governing 
classified information have no clear analogue in either courts-martial 
or Article III courts, depriving commissions of the benefit of the 
jurisprudence that exists under established norms in either courts-
martial or district courts. Without such clear guidance, counsel have 
been unable to obtain ex parte hearings to expedite the resolution of 
classified information issues, and have had to seek multiple protective 
orders to ensure all information, regardless of source, is properly 
protected.
    In May, the President forwarded five rule changes for the 
commissions that became effective in July, which addressed the above 
issues with the exception of the appellate review standards and the 
handling of classified information. I recommend that the appellate 
review standards mirror those found in courts-martial, vesting the 
reviewing court at the first level of appellate review with factual 
sufficiency authority. I also recommend that the classified information 
rules be altered, relying on the Classified Information Procedures Act 
(CIPA) as a touchstone for starting the draft, incorporating the 
lessons learned from commissions to date, and those provisions of MRE 
505 that permit closure of the proceedings when warranted. Counsel and 
military judges will then have the benefit of more than 20 years of 
jurisprudence from CIPA application to guide the use of the rules.
    With regard to statements made by an accused, as I testified, I 
support an admissibility standard based on reliability, the interests 
of justice, the realities of the battlefield on the one hand, and 
voluntariness, when statements are obtained appropriately removed in 
time and distance from the battlefield on the other. To that end, I 
propose the following language:
      
    
    
    
      
    Admiral Hutson. Key is the review process. If we are going to use 
Military Commissions, we should use the same review process that is 
authorized by the Uniform Code of Military Justice (UCMJ) for courts-
martial.
    General Altenburg.

          (a) The inconsistency in the statute and rules which allows a 
        defendant to plead guilty to a capital offense, but then 
        prohibits imposition of the death penalty unless the defendant 
        is found guilty by a unanimous jury must be resolved.
          (b) The initial level of appeal for military commissions 
        should remain as a special appellate court composed of military 
        appellate judges from the Service Courts of Criminal Appeals. 
        These judges are trained and experienced in the unique fact 
        finding role that only military appellate courts exercise. They 
        will provide far more expedited interlocutory and post-trial 
        reviews than will the Court of Appeals for the Armed Forces.
          (c) The revised MCA should contain a provision which allows 
        non-capital defendants the right to elect to be tried and 
        sentenced by the Military Judge alone, as is standard in Court-
        Martial practice.

    Mr. Marcus. My recommendations for changes to the MCA are set forth 
at page 6 of my prepared statement.

                         classified information
    8. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, today, trials during 
an ongoing war present greater risks to national security through the 
unintended release or compromise of classified material than the 
military tribunals at the end of World War II when fighting had ended. 
During the development of the MCA in 2006, many experts from the Judge 
Advocates General to experienced prosecutors and national security 
officials in DOJ felt that use of the CIPA standards could 
inadvertently expose some classified information, including sensitive 
sources and methods, through the process of discovery and trial. What 
are your views on how military commissions can best protect classified 
information?
    Mr. Johnson. We believe that rules addressing classified 
information that are modeled on CIPA, but modified for the military 
commissions context, will best protect classified information and 
ensure fairness to the accused. We have worked closely with the 
Committee staff on the Levin-Graham-McCain amendment, which was adopted 
by the Senate on July 23. Specifically, the provision draws on the 
procedures in CIPA, with some key modifications to reflect lessons 
learned from past terrorism prosecutions. The amendment has the support 
of both DOD and DOJ. We are grateful for the work of the Committee 
staff in developing procedures that will adequately protect classified 
information and advance the President's objective of ensuring that 
commissions are a fair, legitimate, and effective forum for the 
prosecution of law of war offenses.
    Mr. Kris. We believe that rules addressing classified information 
that are modeled on CIPA, but modified for the military commissions 
context, will best protect classified information and ensure fairness 
to the accused. We have worked closely with the committee staff on the 
Levin-Graham-McCain amendment, which was adopted by the Senate on July 
23. Specifically, the provision draws on the procedures in CIPA, with 
some key modifications to reflect lessons learned from past terrorism 
prosecutions. The amendment has the support of both DOD and DOJ. We are 
grateful for the work of the committee staff in developing procedures 
that will adequately protect classified information and advance the 
President's objective of ensuring that commissions are a fair, 
legitimate, and effective forum for the prosecution of law of war 
offenses.
    Admiral MacDonald. As noted in my answer to question 7, the rules 
addressing classified information failed to provide clear guidance to 
military judges and practitioners regarding the standards for discovery 
and the procedures to be used in obtaining ex parte review of petitions 
from the government. The rules governing classified information have no 
clear analogue in either courts-martial or Article III courts, 
depriving commissions of the benefit of the jurisprudence that exists 
under established norms in either courts-martial or district courts. 
Without such clear guidance, counsel have been unable to obtain ex 
parte hearings to expedite the resolution of classified information 
issues, and have had to seek multiple protective orders to ensure all 
information, regardless of source, is properly protected.
    In 2006, I advocated the use of MRE 505 as a way of protecting 
classified information, because under MRE 505, military courts have the 
ability to close a proceeding to the public to protect classified 
information. CIPA provides no such authority, nor is it permitted in 
district courts. However, experience has shown us that the breadth and 
depth of CIPA's jurisprudence provides something that MRE 505 lacks: 
practical guidance in the application of the rules governing the 
handling of classified information. Combining the best of CIPA with the 
best of MRE 505, and avoiding novel standards that have no analogue in 
established rules, is a better solution.
    I recommend that the classified information rules be altered, 
relying on CIPA as a touchstone for starting the draft, incorporating 
the lessons learned from commissions to date, and those provisions of 
MRE 505 that permit closure of the proceedings when warranted. Counsel 
and military judges will then have the benefit of more than 20 years of 
jurisprudence from CIPA application to guide the use of the rules.
    Admiral Hutson. CIPA has worked exceedingly well in Federal courts. 
There is no reason in law or logic why it wouldn't be equally useful in 
military commissions. You can't have a real trial without providing 
that evidence to the defense. Otherwise, it is just a sham.
    General Altenburg. A system for safeguarding classified information 
and providing the intelligence community with the ability to help 
assess the potential national security risks of going forward with 
prosecution of a given case is best provided within the framework of 
RMC and RCM 505. However, it must be recognized that in order to have a 
fair trial when classified information is to be provided to the panel 
(jury) as evidence, defendants must be provided access to that 
information. The intelligence community must be forthright and 
comprehensive in providing information to the prosecution. The 
prosecution has adequate tools available under the rules to protect 
national security (they are national security equities, not 
``intelligence community equities'') while protecting the defense right 
to confront evidence and guarantee a reliable result.
    Mr. Marcus. I believe that CIPA has worked well in Federal court 
criminal cases without compromising national security, and I see no 
reason why it cannot work as effectively in military commission 
proceedings. The ability of military judges to close sensitive parts of 
the trial to the public is an additional safeguard.

    9. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, have the originators 
of classified information cooperated with the prosecutors in providing 
all the required classified information in a timely manner and 
providing declassified substitutes for the defense?
    Mr. Johnson. We are very satisfied with the level of cooperation we 
have received from the Intelligence Community. Sifting through 
classified information on detainees is a time-consuming process. We 
fully understand that this takes significant time and resources, and we 
appreciate the level of effort and cooperation we are receiving.
    Mr. Kris. We are very satisfied with the level of cooperation we 
have received from the Intelligence Community. Sifting through 
classified information on detainees is a timeconsuming process. We 
fully understand that this takes significant time and resources, and we 
appreciate the level of effort and cooperation we are receiving.
    Admiral MacDonald. There is good cooperation; however, we can and 
should continue to make timeliness a priority.
    Admiral Hutson. I have no personal knowledge of this.
    General Altenburg. No. The current process is exceptionally 
timeconsuming and unpredictable. Intelligence organizations are not 
designed to support prosecution of criminal cases. From the perspective 
of the prosecution function the various intelligence agencies do not 
cooperate; the Guantanamo Joint Task Force and Joint Intelligence Group 
are also uncooperative when viewed from the perspective of judicial 
system participants.
    Mr. Marcus. I am not in a position to answer this question.

    10. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, what changes would 
you recommend to the MCA's classified information protection provisions 
based on military commission trial and discovery experience to date?
    Mr. Johnson. See the answer to question 8.
    Mr. Kris. See the answer to question 8.
    Admiral MacDonald. As noted in my answer to questions 7and 10, the 
rules addressing classified information failed to provide clear 
guidance to military judges and practitioners regarding the standards 
for discovery and the procedures to be used in obtaining ex parte 
review of petitions from the government. The rules governing classified 
information have no clear analogue in either courts-martial or Article 
III courts, depriving commissions of the benefit of the jurisprudence 
that exists under established norms in either courts-martial or 
district courts. Without such clear guidance, counsel have been unable 
to obtain ex parte hearings to expedite the resolution of classified 
information issues, and have had to seek multiple protective orders to 
ensure all information, regardless of source, is properly protected.
    In 2006, I advocated the use of MRE 505 as a way of protecting 
classified information, because under MRE 505, military courts have the 
ability to close a proceeding to the public to protect classified 
information. CIPA provides no such authority, nor is it permitted in 
district courts. However, experience has shown us that the breadth and 
depth of CIPA's jurisprudence provides something that MRE 505 lacks: 
practical guidance in the application of the rules governing the 
handling of classified information. Combining the best of CIPA with the 
best of MRE 505, and avoiding novel standards that have no analogue in 
established rules, is a better solution.
    I recommend that the classified information rules be altered, 
relying on CIPA as a touchstone for starting the draft, incorporating 
the lessons learned from commissions to date, and those provisions of 
MRE 505 that permit closure of the proceedings when warranted. Counsel 
and military judges will then have the benefit of more than 20 years of 
jurisprudence from CIPA application to guide the use of the rules.
    Admiral Hutson. I would make whatever changes would bring MCs in 
line with CIPA.
    General Altenburg. This is a difficult issue. The problem is that 
the intelligence agencies want to be the sole decisionmakers regarding 
relevance of any information, and not turn over anything else. It seems 
to me that the prosecutors should be properly entrusted with this 
responsibility, but encounter difficulty with intelligence personnel. 
When defense counsel object to prosecutor determinations then judges 
will resolve the matters. Prosecutors must be empowered to make the 
initial relevancy determinations. Those determinations will, of course, 
be reviewable.
    Mr. Marcus. The committee's bill contains provisions partially 
embracing CIPA principles and procedures, and I understand that the 
Justice Department has suggested additional steps to move further in 
that direction. I encourage the committee to adopt CIPA principles and 
procedures for treatment of classified information to the greatest 
extent practicable.

                  crimes committed before september 11
    11. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, the MCA addresses 
crimes that were committed before September 11 in two ways. First, it 
includes a statement that military commissions have jurisdiction over 
offenses committed ``before, on, or after September 11, 2001'' (section 
948d). Second, the MCA notes that it did not establish new crimes that 
did not exist before its enactment, but codifies those crimes that 
could be tried by military commissions so trials for crimes that 
occurred before the date of enactment are not precluded (section 950p). 
What are your views on the MCA's treatment of offenses that occurred 
before September 11? Does this raise a constitutional ``ex post facto 
law'' problem?
    Mr. Johnson. Article I, section 9 of the Constitution prohibits the 
Federal Government from enacting laws with certain retroactive effects, 
including laws that ``make an action done before the passing of the 
law, and which was innocent when done, criminal.'' Stogner v. 
California, 539 U.S. 607, 610-12 (2003) (quoting Calder v. Bull, 3 
Dall. 386, 390-91 (1798)). The MCA authorizes trial by military 
commission of a number of substantive offenses. If an offense were 
clearly not previously a crime under the law of war, section 950p of 
the MCA would not save a prosecution for that offense from potential 
dismissal on ex post facto grounds. Prosecution of a law-of-war offense 
committed during armed conflict would not raise ex post facto concerns, 
regardless of when the trial takes place.
    Mr. Kris. Article I, section 9 of the Constitution prohibits the 
Federal Government from enacting laws with certain retroactive effects, 
including laws that ``make an action done before the passing of the 
law, and which was innocent when done, criminal.'' Stogner v. 
California, 539 U.S. 607, 610-12 (2003) (quoting Calder v. Bull, 3 
Dall. 386, 390-91 (1798)). The MCA authorizes trial by military 
commission of a number of substantive offenses. If an offense were 
clearly not previously a crime under the law of war, section 950p of 
the MCA would not save a prosecution for that offense from potential 
dismissal on ex post facto grounds. Prosecution of a law-of-war offense 
committed during armed conflict would not raise ex post facto concerns, 
regardless of when the trial takes place.
    Admiral MacDonald. In my opinion, it does not. There is precedent 
and practice, both domestically and internationally, to charge and try 
persons for alleged violations of the laws and customs of war, which by 
definition, are not exhaustively codified into positive criminal 
statutes. The International Criminal Tribunal for the Former 
Yugoslavia, the International Criminal Tribunal for Rwanda, and the 
International Criminal Court all contain residual clauses granting the 
tribunals jurisdiction to hear cases of alleged violations of the 
``laws and customs of war.'' The burden is on the prosecutor to show 
that at the time of the alleged offense, there existed a customary rule 
under the laws of war, which applied to the accused at the time of the 
alleged offense.
    Admiral Hutson. It clearly raises ``ex post facto'' issues. This is 
a good example of why we should use the already existing Federal court 
system and not military commissions and certainly not base convictions 
on newly minted laws.
    General Altenburg. It does not raise an ex post facto problem as 
long as the crimes which are charged are rooted in the traditional law 
of war and were actually punishable prior to September 11, 2001. The 
MCA should state expressly that it is codifying existing law rather 
than establishing new crimes; this will resolve a confusing issue.
    Mr. Marcus. I am troubled by prosecuting most pre-September 11 
offenses by GTMO detainees as war crimes because we were not engaged in 
an armed conflict with al Qaeda or the Taliban before September 11. Of 
course, crimes such as the 1998 attacks on the U.S. embassies in Kenya 
and Tanzania or the 2000 attack on the U.S.S. Cole can and should be 
prosecuted in U.S. Federal courts or appropriate criminal tribunals in 
other countries. Most of the offenses set forth in the MCA were clearly 
understood to be war crimes triable before military commissions before 
the MCA was enacted. There is controversy as to only a few--
particularly conspiracy and material support of terrorism. I think it 
is appropriate for Congress to deem conspiracy and terrorism to be war 
crimes triable before military commissions. I think, however, that 
``material support of terrorism'' is problematic because of its broad 
sweep and unclear basis in the law of armed conflict.

    12. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, have ``ex post facto 
law'' issues been raised during military commission trials? How have 
the judges ruled on that issue?
    Mr. Johnson. Military commissions have ruled on ex post facto 
issues in three cases: United States v. al Darbi (see Annex B), United 
States v. Hamdan (see Annex C), and United States v. Khadr (see Annex 
D). In those cases, the defense moved to dismiss specific charges for 
lack of subject-matter jurisdiction. Al Darbi and Hamdan challenged the 
charges brought against them for conspiracy, 10 U.S.C.  950v(b)(28), 
and for providing material support to terrorism, 10 U.S.C.  
950v(b)(25). Khadr challenged the charge of providing material support 
for terrorism.
    In all three cases, the Commission judge denied the relief 
requested on grounds that the ex post facto clause of the U.S. 
Constitution was not violated.
    The defense has filed motions to dismiss based on ex post facto 
arguments in the cases of United States v. Mohammed et al. (September 
11 case) and United States v. al Qosi. Those motions remain pending.
    Mr. Kris. Military commissions have ruled on ex post facto issues 
in three cases: United States v. al Darbi (see Annex B), United States 
v. Hamdan (see Annex C), and United States v. Khadr (see Annex D). In 
those cases, the defense moved to dismiss specific charges for lack of 
subject-matter jurisdiction. Al Darbi and Hamdan challenged the charges 
brought against them for conspiracy, 10 U.S.C. Sec. 950v(b)(28), and 
for providing material support to terrorism, 10 U.S.C. 
Sec. 950v(b)(25). Khadr challenged the charge of providing material 
support for terrorism.
    In all three cases, the commission judge denied the relief 
requested on grounds that the ex post facto clause of the U.S. 
Constitution was not violated.
    The defense has filed motions to dismiss based on ex post facto 
arguments in the cases of United States v. Mohammed et al. (September 
11 case) and United States v. al Qosi. Those motions remain pending.
    Admiral MacDonald. Military commissions have ruled on ex post facto 
issues in three cases: United States v. al Darbi, United States v. 
Hamdan, and United States v. Khadr. In those cases, the defense moved 
to dismiss specific charges for lack of subject-matter jurisdiction. 
Darbi and Hamdan challenged the charges brought against them for 
conspiracy, 10 U.S.C.  950v(b)(28), and for providing material support 
to terrorism, 10 U.S.C.  950v(b)(25). Khadr challenged the charge of 
providing material support for terrorism. In all three cases, the 
Commission judge denied the relief requested on grounds that the ex 
post facto clause of the U.S. Constitution was not violated.
    Admiral Hutson. I have no personal knowledge.
    General Altenburg. The defense has raised this issue in most, if 
not all, of the pending cases. No judge has granted any motion to 
dismiss the case on this basis.
    Mr. Marcus. I am not aware of how the ``ex post facto'' issue has 
been treated in military commission proceedings since the MCA was 
enacted.

    13. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, should the MCA 
continue to authorize trial of offenses that occurred before September 
11?
    Mr. Johnson. As President Obama said in his May 21 speech at the 
National Archives, military commissions are an appropriate venue for 
``trying detainees for violations of the law of war.'' We believe it is 
important for the system's legitimacy that commissions try only conduct 
that was a violation of the laws of war when it occurred, and that took 
place during a relevant period of conflict. This could include some 
offenses that were committed as part of an armed conflict prior to 
September 11, 2001. The administration will work to ensure that 
prosecutions under the MCA, including any amendments that may be 
enacted to refine the offenses defined in that statute, meet both of 
these standards.
    Mr. Kris. As President Obama said in his May 21 speech at the 
National Archives, military commissions are an appropriate venue for 
``trying detainees for violations of the law of war.'' We believe it is 
important for the system's legitimacy that commissions try only conduct 
that was a violation of the laws of war when it occurred, and that took 
place during a relevant period of conflict. This could include some 
offenses that were committed as part of an armed conflict prior to 
September 11, 2001. The administration will work to ensure that 
prosecutions under the MCA, including any amendments that may be 
enacted to refine the offenses defined in that statute, meet both of 
these standards.
    Admiral MacDonald. Yes. As the 9/11 Commission documented, members 
of al Qa'ida and associated organizations intentionally attacked U.S. 
civilians, civilian objects, and U.S. Armed Forces in violation of the 
laws and customs of war prior to September 11. Military Commissions are 
a war crimes tribunal, and they should have jurisdiction to hear cases 
that predated September 11.
    Admiral Hutson. I don't think there is a legal prohibition but I 
think it is bad policy.
    General Altenburg. Yes.
    Mr. Marcus. No.

    14. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, what changes, if 
any, would you recommend?
    Mr. Johnson. The administration is committed to working with 
Congress to address ex post facto and other legal concerns potentially 
raised by prosecutions under the MCA. Among these recommendations is 
that Congress consider amending section 950w to remove the offense of 
``material support for terrorism,'' which the administration has 
concluded appellate courts may find is not a traditional violation of 
the law of war. If this offense is removed, the administration further 
recommends that Congress consider amending section 950p to include a 
clear statement that the offenses contained in the bill codify offenses 
that have traditionally been triable under the law of war or otherwise 
triable by military commission. Please see the answer to question 7 for 
the administration's recommendations regarding additional modifications 
we would like to see to the Senate bill.
    Mr. Kris. The administration is committed to working with Congress 
to address ex post facto and other legal concerns potentially raised by 
prosecutions under the MCA. Among these recommendations is that 
Congress consider amending section 950w to remove the offense of 
``material support for terrorism,'' which the administration has 
concluded appellate courts may find is not a traditional violation of 
the law of war. If this offense is removed, the administration further 
recommends that Congress consider amending section 950p to include a 
clear statement that the offenses contained in the bill codify offenses 
that have traditionally been triable under the law of war or otherwise 
triable by military commission. Please see the answer to question 7 for 
the administration's recommendations regarding additional modifications 
we would like to see to the Senate bill.
    Admiral MacDonald. I personally do not believe any changes are 
needed regarding pre-September 11 offenses.
    Admiral Hutson. I would prosecute those cases which are not barred 
by the statute of limitations in U.S. District Court.
    General Altenburg. None.
    Mr. Marcus.I would eliminate the crime of material support of 
terrorism.

                                hearsay
    15. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, the MCA provides 
broad authority to use hearsay evidence at trial so long as the judge 
finds it is reliable and probative. However, the burden to show that 
hearsay was not reliable or probative was put on the party opposing the 
evidence, which normally is the detainee. Who should have the burden of 
showing that hearsay is reliable and should be admitted at trial?
    Mr. Johnson. In May the administration announced five rule changes 
to the military commissions. One of those changes deals with this 
issue--making sure that the party seeking admission of hearsay has the 
burden to prove that it is reliable and probative, which is where the 
administration believes the burden belongs.
    Mr. Kris. In May, the administration announced five rule changes to 
the military commissions. One of those changes deals with this issue--
making sure that the party seeking admission of hearsay has the burden 
to prove that it is reliable and probative, which is where the 
administration believes the burden belongs.
    Admiral MacDonald. I fully support the change to this standard that 
was forwarded by the President in a rule change that became effective 
in July. The proponent of hearsay evidence, just like the proponent of 
any evidence offered for admission, should have the burden of 
establishing reliability and admissibility.
    Admiral Hutson. The proponent.
    General Altenburg. The party offering the evidence should have the 
burden of establishing its admissibility. The trial judge then must 
determine, as with any evidence offered by either party, whether the 
evidence is probative and reliable, and therefore admissible. I 
disagree with the assertion in this question that the government is 
usually the party offering hearsay. I believe that the relaxed hearsay 
provisions of the MCA will benefit the accused, who does not have the 
unlimited access to live witnesses that the government does, at least 
as much they will benefit the government.
    Mr. Marcus. The prosecution should have the burden of establishing 
admissibility of hearsay evidence.

    16. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, is the hearsay 
exception in the MCA too broad? If so, how should it be narrowed and 
yet still take into account the realities of wartime circumstances when 
witnesses may be involved in combat or intelligence operations and 
foreign intelligence service personnel who may not be compelled to 
attend trial may be involved?
    Mr. Johnson. The administration supports the general approach taken 
by the committee in reforming the use of hearsay evidence under the 
MCA, which includes a general restriction on hearsay and a residual 
exception. The administration, however, recommends a somewhat different 
standard for when the residual exception should apply, based on whether 
the hearsay evidence is more probative than other evidence that could 
be procured through reasonable efforts. We believe this exception 
accounts for the realities of wartime circumstances, while limiting the 
use of this exception to circumstances in which it is warranted. Please 
see the answer in question #7 for the administration's recommendation 
on this issue.
    Mr. Kris. The administration supports the general approach taken by 
the committee in reforming the use of hearsay evidence under the MCA, 
which includes a general restriction on hearsay and a residual 
exception. The administration, however, recommends a somewhat different 
standard for when the residual exception should apply, based on whether 
the hearsay evidence is more probative than other evidence that could 
be procured through reasonable efforts. We believe this exception 
accounts for the realities of wartime circumstances, while limiting the 
use of this exception to circumstances in which it is warranted. Please 
see the answer in question #7 for the administration's recommendation 
on this issue.
    Admiral MacDonald. As a general matter, I believe that a hearsay 
standard requiring that the proponent establish reliability is not 
overly broad. However, I believe that that broad admissibility standard 
should only be permitted when the proponent has established that there 
is a sound, practical need to use hearsay evidence in place of direct 
testimony from the declarant. I support a formulation similar to the 
Senate proposal which contains a requirement that the proponent 
establish that the declarant is unavailable, basing that unavailability 
in the realities of wartime circumstances.
    Admiral Hutson. It is too broad. The FRE are sufficient to account 
for war time scenarios. Evidence will not be barred by hearsay unless 
the context and motive is criminal investigation vice warfighting.
    General Altenburg. The proposed amendments to the MCA are a 
substantial improvement, but should be further refined to require that 
the military judge determine, under the totality of the circumstances, 
that a statement is reliable for the purpose for which it is offered. 
In addition, the current requirement that a witness be unavailable 
before hearsay is admitted, while furthering the goal of confronting 
witnesses, will create extensive litigation in each case over the 
unavailability of the witness and could make prosecutions by 
commissions untenable. The military judge should be granted statutory 
discretion to balance these factors when deciding admissibility of a 
particular statement. It is worth remembering that flexibility in 
hearsay is warranted not as a way to reduce the rigor or reliability of 
the trial process but as a recognition of the way our combat troops 
fight and the fact that evidence gathering in a war zone simply cannot 
meet the strictures with which we are familiar in Stateside civilian 
settings.
    Mr. Marcus. I endorse the standard for admissibility contained in 
the committee's bill.

              coercion and due process rights of detainees
    17. Senator McCain. Mr. Johnson and Mr. Kris, the Wall Street 
Journal and the New York Times reported last week that the DOJ Office 
of Legal Counsel issued guidance in May that detainees have some level 
of due process rights that could bar use at trial of statements made 
under coercion. What is your opinion of the level of due process rights 
enjoyed by detainees and the degree of coercion that would violate a 
detainee's due process rights?
    Mr. Johnson. The administration believes that, whether military 
commissions are convened in the United States or at Guantanamo, there 
is a significant risk, in light of the circumstances of the Guant namo 
detainees, that courts will apply a baseline of due process protections 
in commission proceedings. This does not mean that courts would provide 
commission defendants with the same array of constitutional rights that 
defendants receive in Article III criminal trials. We do believe, 
however, that there is a significant risk courts would afford 
commission defendants with those due process protections that are ``so 
rooted in the traditions and conscience of our people as to be ranked 
as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). In 
particular, we believe there is a substantial risk that courts will 
hold that the Constitution requires application of a due process 
voluntariness test for admission of statements of the accused, although 
we do not believe that courts would apply the Miranda rules prohibiting 
admission of unwarned statements. This is so regardless of whether the 
commission proceedings take place in Guantanamo or the United States.
    Mr. Kris. The administration believes that, whether military 
commissions are convened in the United States or at Guantanamo, there 
is a significant risk, in light of the circumstances of the Guantanamo 
detainees, that courts will apply a baseline of due process protections 
in commission proceedings. This does not mean that courts would provide 
commission defendants with the same array of constitutional rights that 
defendants receive in Article III criminal trials. We do believe, 
however, that there is a significant risk courts would afford 
commission defendants with those due process protections that are ``so 
rooted in the traditions and conscience of our people as to be ranked 
as fundamental.'' Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). In 
particular, we believe there is a substantial risk that courts will 
hold that the Constitution requires application of a due process 
voluntariness test for admission of statements of the accused, although 
we do not believe that courts would apply the Miranda rules prohibiting 
admission of unwarned statements. This is so regardless of whether the 
commission proceedings take place in Guantanamo or the United States.

    18. Senator McCain. Mr. Johnson and Mr. Kris, would a prohibition 
on use of testimony obtained through interrogation techniques amounting 
to cruel, inhuman, or degrading treatment be sufficient to satisfy due 
process if the evidence was otherwise deemed reliable and probative by 
the military judge and its admission served the best interests of 
justice?
    Mr. Johnson. See our answer to question 17. A standard based on 
reliability and the ``interests of justice'' 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 are 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  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:
      
    
      
    
    
      
    Mr. Kris. See our answer to question 17. A standard based on 
reliability and the ``interests of justice'' 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 are 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:
      
    
    <
    
      
     definition of ``unlawful enemy combatant'' or ``unprivileged 
                             belligerent''
    19. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, the Obama 
administration has developed a somewhat different standard for 
detention authority for use in the ongoing habeas cases and is not 
using the term ``unlawful enemy combatant.'' Should the definition of 
``unlawful enemy combatant'' as used for the purpose of jurisdiction of 
military commissions be changed? If so, how?
    Mr. Johnson. The administration supports the determination to 
discontinue the use of the term ''unlawful enemy combatant'' in the 
military commission legislation that passed the Senate on July 23. The 
administration believes that it is unnecessary to establish a new term 
of art for persons subject to trial by military commission.
    Mr. Kris. The administration supports the determination to 
discontinue the use of the term ``unlawful enemy combatant'' in the 
military commission legislation that passed the Senate on July 23. The 
administration believes that it is unnecessary to establish a new term 
of art for persons subject to trial by military commission.
    Admiral MacDonald. The authorities provided under the laws of war 
to detain people are separate from jurisdictional definitions for war 
crimes tribunals, and I support the administration's 13 March standard 
on detention authority. With regard to the distinctions in terminology 
between ``unlawful enemy combatant'' and ``unprivileged enemy 
belligerent,'' the two terms are synonymous under Defense Department 
Directive 2310.1E, and both may be found in commentary from leading 
jurists. As a technical matter, the phrase ``unprivileged belligerent'' 
predates ``unlawful combatant'' and is the more commonly used term 
under the laws of war.
    Admiral Hutson. ``Enemy combatant'' or perhaps ``Unprivileged enemy 
combatant.''
    General Altenburg. The proposed change to the term ``unprivileged 
enemy belligerent'' is a positive change, which will now include those 
who engage in hostilities against our coalition partners.
    Mr. Marcus. Yes. The definition of ``unlawful enemy combatant'' in 
the MCA should be changed to reflect the substance of recent decisions 
by U.S. District Judges in GTMO habeas cases, most of which have 
limited the scope of detention authority to individuals who have taken 
part in hostilities against the United States as part of al Qaeda or 
the Taliban or who have provided substantial support to those 
hostilities.

                appellate review of military commissions
    20. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, different routes for 
appellate review of military commissions have been considered. The 
current MCA system includes a new court within DOD, the Court of 
Military Commission Review (CMCR), and mandatory review by an Article 
III court, the U.S. Court of Appeals for the District of Columbia 
Circuit, with the possibility of review by the U.S. Supreme Court. 
Other alternatives have included the U.S. Court of Appeals for the 
Armed Forces. What are your views on appellate review for military 
commissions? Should an Article III court be involved, or should the 
U.S. Court of Appeals for the Armed Forces conduct the appellate review 
as is the case for courts-martial?
    Mr. Johnson. We agree with the Senate that the scope of appellate 
review must be expanded to include review of factual as well as legal 
matters. However, we believe that a four-tier appellate structure 
should be retained. The Senate bill eliminates the CMCR and eliminates 
appeals from that court to the United Court of Appeals for the District 
of Columbia Circuit. The Senate bill would instead route appeals 
directly from the trial level military commission to the U.S. Court of 
Appeals for the Armed Forces, thus replacing the current four-tiered 
appeals structure with a three-tiered one. The administration believes 
that it is important to retain a four-tiered structure, given the 
complexity of the cases and issues likely to arise, and that the United 
States Court of Appeals for the DC Circuit should be retained in the 
structure.
    Mr. Kris. We agree with the Senate that the scope of appellate 
review must be expanded to include review of factual as well as legal 
matters. However, we believe that a four-tier appellate structure 
should be retained. The Senate bill eliminates the CMCR and eliminates 
appeals from that court to the United Court of Appeals for the District 
of Columbia Circuit. The Senate bill would instead route appeals 
directly from the trial level military commission to the U.S. Court of 
Appeals for the Armed Forces, thus replacing the current four-tiered 
appeals structure with a three-tiered one. The administration believes 
that it is important to retain a four-tiered structure, given the 
complexity of the cases and issues likely to arise, and that the United 
States Court of Appeals for the DC Circuit should be retained in the 
structure.
    Admiral MacDonald. I support review of military commissions by a 
civilian court. For courts-martial, convictions are reviewed first by a 
Service Court of Criminal Appeals, authorized to review a conviction 
and sentence for factual and legal sufficiency, sentence 
appropriateness and prejudicial legal error. Convictions are then 
reviewed by the Court of Appeals for the Armed Forces for legal 
sufficiency and prejudicial legal error, and if a petition for review 
is granted, further legal review is available by the Supreme Court. I 
support that same construct. While my preference would be to conduct 
factual sufficiency review by military judges who have experience 
conducting that type of review in courts-martial, the Court of Appeals 
for the Armed Forces is fully capable of conducting a factual and legal 
sufficiency review.
    Admiral Hutson. If we use military commissions, then the military 
court martial review process should be used. Bouncing into the civilian 
system at the review level makes no sense.
    General Altenburg. The current appellate review structure should be 
preserved. The Court of Appeals for the Armed Forces is an 
inappropriate forum for deciding interlocutory appeals, initial post-
trial appeals, and fact finding. These functions in the military system 
belong exclusively to the Service Courts of Criminal Appeals, which are 
experienced and trained in those functions. The CMCR, composed of 
service appellate judges, provides the best mechanism for dealing with 
these appellate review functions. The service appellate judges are 
experienced by virtue of the fact that many have been trial judges with 
fact finding authority; they have acquired more fact finding experience 
as service appellate judges because of the unique Congressional 
provisions for those courts. Only the best of this already select group 
of judges are then nominated for the CMCR. Their staffs, both uniformed 
and civilian, also have considerable experience analyzing and 
processing hundreds of cases and applying fact finding analysis in all 
of the cases, even guilty plea cases; the service appellate court 
culture is replete with nearly 60 years of appellate factfinding 
experience and precedent. The service appellate court caseloads, 
affected by mandatory appeal considerations, generate more experience 
for their participants than courts whose members accept a finite 
caseload and have minimal, if any, experience with the fact finding 
function. Appeal beyond the CMCR should also be preserved in the United 
States Court of Appeals for the DC Circuit, an Article III appellate 
court.
    Mr. Marcus. Review in either the Court of Appeals for the DC 
Circuit or the Court of Appeals for the Armed Forces is appropriate.

    21. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, should appellate 
review at some level include both facts and law, as under the first 
level of review of courts-martial?
    Mr. Johnson. Yes. We concur with the expanded scope of appellate 
review in section 1031, which includes review of factual as well as 
legal matters.
    Mr. Kris. Yes. We concur with the expanded scope of appellate 
review in section 1031, which includes review of factual as well as 
legal matters.
    Admiral MacDonald. As I noted in my answer to question 20, I do 
support review of both facts and law. Our military judges are well 
versed in the practice, and I support using a review that mirrors that 
found under the UCMJ to the maximum extent possible.
    Admiral Hutson. Yes.
    General Altenburg. Because the Commissions system is rooted in 
military law and court-martial practice, the fact finding function of 
the initial level appellate court represents uniformity with that 
system. It works well in court martial practice; I see no reason to 
change it for Commissions. I reiterate, however, that this court must 
be composed of military appellate judges who are trained and 
experienced in this unique appellate function.
    Mr. Marcus. Yes--facts and law.

                 executive order on long-term detention
    22. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, on June 27, 2009, 
the Washington Post reported that the White House was considering 
issuing an Executive order reasserting the President's authority to 
incarcerate terrorism suspects indefinitely. In your opinion, does the 
President currently have authority under the AUMF to hold terrorists, 
including members of al Qaeda and the Taliban, until the end of 
hostilities?
    Mr. Johnson. As the President stated in his National Archives 
address, there may ultimately be a category of Guantanamo detainees 
``who cannot be prosecuted for past crimes,'' but ``who nonetheless 
pose a threat to the security of the United States'' and ``in effect, 
remain at war with the United States.'' For this category of people, 
the President stated ``[w]e must have clear, defensible, and lawful 
standards'' and ``a thorough process of periodic review, so that any 
prolonged detention is carefully evaluated and justified.''
    This President believes that, if any detention of this sort proves 
necessary, the authority to detain must be rooted firmly in 
authorization granted by Congress. This is why, on March 13, 2009, DOJ 
refined the Government's definition of our authority to detain those at 
Guantanamo Bay, from the ``enemy combatant'' definition used by the 
prior administration to one that is tied to the AUMF passed by Congress 
in 2001, as informed by the laws of war. Thus, with regard to the 
current detainee population at Guantanamo, this administration relies 
on authority provided by Congress as informed by the laws of war in 
justifying to Federal courts in habeas corpus litigation the continued 
detention of Guantanamo detainees.
    Mr. Kris. As the President stated in his National Archives address, 
there may ultimately be a category of Guantanamo detainees ``who cannot 
be prosecuted for past crimes,'' but ``who nonetheless pose a threat to 
the security of the United States'' and ``in effect, remain at war with 
the United States.'' For this category of people, the President stated 
``[w]e must have clear, defensible, and lawful standards'' and ``a 
thorough process of periodic review, so that any prolonged detention is 
carefully evaluated and justified.''
    This President believes that, if any detention of this sort proves 
necessary, the authority to detain must be rooted firmly in 
authorization granted by Congress. This is why, on March 13, 2009, DOJ 
refined the Government's definition of our authority to detain those at 
Guantanamo Bay, from the ``enemy combatant'' definition used by the 
prior administration to one that is tied to the AUMF passed by Congress 
in 2001, as informed by the laws of war. Thus, with regard to the 
current detainee population at Guantanamo, this administration relies 
on authority provided by Congress as informed by the laws of war in 
justifying to Federal courts in habeas corpus litigation the continued 
detention of Guantanamo detainees.
    Admiral MacDonald. Yes; under the laws of war, unprivileged enemy 
belligerents can be detained for the duration of hostilities in a non-
international armed conflict. The Supreme Court has ruled that the 
armed conflict with al Qa'ida is a non-international armed conflict, or 
what is sometimes referred to as a Common Article III armed conflict. 
The Court has also ruled that the President's authority under the AUMF 
includes detention authority.
    Admiral Hutson. I do not believe the AUMF gives him that authority 
by its terms but he does have it under the Geneva Conventions and the 
common law of armed conflict. However, his political, diplomatic, 
practical and humanitarian power to do so may be significantly more 
limited.
    General Altenburg. Yes.
    Mr. Marcus. Yes. The President has the authority to hold al Qaeda 
and Taliban detainees until the end of hostilities. But given the 
indefinite nature of this conflict, detainees should be tried for war 
crimes or released if at all possible. There should be a more robust 
and independent system for reviewing the status of those who continue 
to be detained.

    23. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, does the President's 
authority to detain extend to other individuals or groups?
    Mr. Johnson. Please see the answer to question 22. The 
administration has adopted a detention standard for the detainees at 
Guantanamo that is based on the AUMF, as informed by the law of war. 
This standard reads as follows:

          The President has the authority to detain persons that the 
        President determines planned, authorized, committed, or aided 
        the terrorist attacks that occurred on September 11, 2001, and 
        persons who harbored those responsible for those attacks. The 
        President also has the authority to detain persons who were 
        part of, or substantially supported, Taliban or al Qaeda forces 
        or associated forces that are engaged in hostilities against 
        the United States or its coalition partners, including any 
        person who has committed a belligerent act, or has directly 
        supported hostilities, in aid of such enemy armed forces.

    Mr. Kris. Please see the answer to question 22. The administration 
has adopted a detention standard for the detainees at Guantanamo that 
is based on the AUMF, as informed by the law of war. This standard 
reads as follows:

          The President has the authority to detain persons that the 
        President determines planned, authorized, committed, or aided 
        the terrorist attacks that occurred on September 11, 2001, and 
        persons who harbored those responsible for those attacks. The 
        President also has the authority to detain persons who were 
        part of, or substantially supported, Taliban or al Qaeda forces 
        or associated forces that are engaged in hostilities against 
        the United States or its coalition partners, including any 
        person who has committed a belligerent act, or has directly 
        supported hostilities, in aid of such enemy armed forces.

    Admiral MacDonald. On March 13, the administration submitted a 
legal position on the authority under the AUMF to detain the persons 
now held at Guantanamo Bay, and to date, the relevant Federal courts 
have entered rulings supporting that position. I also support the March 
13 position, which follows:

          The President has the authority to detain persons that the 
        President determines planned, authorized, committed, or aided 
        the terrorist attacks that occurred on September 11, 2001, and 
        persons who harbored those responsible for those attacks. The 
        President also has the authority to detain persons who were 
        part of, or substantially supported, Taliban or al Qaeda forces 
        or associated forces that are engaged in hostilities against 
        the United States or its coalition partners, including any 
        person who has committed a belligerent act, or has directly 
        supported hostilities, in aid of such enemy armed forces.

    Admiral Hutson. It extends to anyone who is engaged in a war (as 
opposed to criminal activity) against the U.S.
    General Altenburg. International law and the Geneva Conventions 
provide that enemy combatants, both lawful and unlawful, may be 
detained until the end of hostilities.
    Mr. Marcus. The changing nature of al Qaeda and affiliated 
terrorist groups makes this a difficult question to answer. But the 
AUMF should not be construed to authorize detention of individuals who 
are members of groups not clearly and closely affiliated with al Qaeda 
or the Taliban.

    24. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, during his May 
speech at the National Archives, President Obama indicated his intent 
to seek authorization from Congress and provide for judicial review of 
long-term detention of terrorists who could not be tried, but were too 
dangerous to release. How could President Obama achieve those 
objectives if he issues an Executive order?
    Mr. Johnson. Congress has already provided authorization through 
the AUMF to detain persons who the President determines planned, 
authorized, committed, or aided the terrorist attacks that occurred on 
September 11, 2001, persons who harbored those responsible for those 
attacks, and persons who were part of, or substantially supported, 
Taliban or al Qaeda forces or associated forces that are engaged in 
hostilities against the United States or its coalition partners. Habeas 
courts are actively reviewing the government's detention decisions. The 
administration is not currently seeking additional authorization.
    Mr. Kris. Congress has already provided authorization through the 
AUMF to detain persons who the President determines planned, 
authorized, committed, or aided the terrorist attacks that occurred on 
September 11, 2001, persons who harbored those responsible for those 
attacks, and persons who were part of, or substantially supported, 
Taliban or al Qaeda forces or associated forces that are engaged in 
hostilities against the United States or its coalition partners. Habeas 
courts are actively reviewing the government's detention decisions. The 
administration is not currently seeking additional authorization.
    Admiral MacDonald. I must respectfully defer to the administration 
on this question; however, I would note that in my view the President 
already has authority under the laws of war and the AUMF to detain 
members of al Qaeda, Taliban, and associated forces and others as 
described in the March 13 position (see previous answer), for the 
duration of hostilities. In this regard, I would like to emphasize that 
the armed conflict confronting us was not of our choosing and the 
duration of hostilities will depend in large measure on the actions of 
the enemy.
    Admiral Hutson. If that power is authorized, it is better to come 
from Congress than from an Executive order.
    General Altenburg. By expanding the role of military judges to 
include this function, but any expansion of Federal judicial 
jurisdiction would, in my opinion, require congressional authorization.
    Mr. Marcus. While the President could issue an executive order on 
detention, consistent with the AUMF, it seems to me that he would need 
legislation to establish a judicial review mechanism. I also think that 
it would be desirable to have Congress authorize any longer-term 
detention system.

                        sorting cases for trial
    25. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, how would you 
propose sorting cases that should be tried in Article III Federal 
courts from those that should be tried before a military commission?
    Mr. Johnson. DOJ and DOD have agreed upon a protocol for evaluating 
whether detainees at Guantanamo Bay who may be prosecuted should be 
prosecuted in an Article III civilian court or by military commission. 
That protocol is attached (see Annex A).
    Mr. Kris. DOJ and DOD have agreed upon a protocol for evaluating 
whether detainees at Guantanamo Bay who may be prosecuted should be 
prosecuted in an Article III civilian court or by military commission. 
That protocol is attached (see Annex A).
    Admiral MacDonald. There may be individual instances where a 
determination may be warranted to criminally prosecute a case in an 
Article III court, depending on factors such as the citizenship of the 
accused, the location of the offense, the status of the victims, or the 
particularities of the crime. Ultimately, it is a policy determination 
as to whether the Nation chooses to pursue a case in one forum or 
another. No matter whether or how that determination is made, however, 
I think it is important that the system for military commissions this 
country establishes is fair, and that our confidence in the fairness 
and legality of their rules and procedures is so high that we are able 
to accept trial of our own servicemembers before similar tribunals for 
allegations of war crimes brought by another country.
    Admiral Hutson. I would try all the cases in Article III courts. 
These are the courts with the unimpeachable credibility and vast 
experience to do it well. They have proven success and military 
commissions have demonstrated failure.
    General Altenburg. Those cases whose core facts more reasonably are 
rooted in law of war violations should be tried by Military Commission; 
those which are more reasonably rooted in criminal violations should be 
tried by Article III courts. This is, however, not the most workable 
distinction to make, because most offenses can be characterized as 
violations of the law of war or as conventional crimes (consider, e.g., 
Lockerbie, indisputably the war crime of murdering innocent civilians, 
but also an extra-territorial murder prosecutable under the U.S. Code). 
Employing military commissions, then, fulfills a strategic purpose that 
transcends the elements of a crime, because it is a singularly 
appropriate, specialized forum in which we have tried war crimes since 
George Washington commanded our forces. It can accommodate, within the 
context of a contested criminal proceeding, the unique demands of 
national security, personal security, evidence gathering, and 
intelligence. Under no circumstances should Military Commissions be 
reserved for cases where the evidence would not support findings beyond 
a reasonable doubt; such a distinction would invalidate the legitimacy 
of the Commissions process.
    Mr. Marcus. One or the other forum--military commissions or Federal 
courts--may be the more desirable depending on the facts and litigation 
problems of particular cases. I think some categories of cases should 
be tried in Federal courts--e.g., those against detainees (such as 
Padilla or al-Marri) who were captured or arrested while lawfully in 
the United States, and those against detainees who committed crimes 
that occurred before, and were unrelated to, the September 11 attacks. 
Military commissions should only be used for September 11-related or 
post-September 11 war crimes.

    26. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, if a terrorist 
attack on civilians is a war crime, why shouldn't all trials be by 
military commission?
    Mr. Johnson. The administration believes that reformed military 
commissions are appropriate for trying our enemies for war crimes--with 
a long tradition dating back to the Revolutionary War. That does not 
mean, however, that we should ignore other available means to fight our 
enemy--including intelligence gathering, diplomacy, and traditional law 
enforcement, including prosecution in Federal court. The same conduct 
that constitutes a war crime may also constitute an offense under our 
criminal code. We need to use all elements of national power to combat 
terrorism, including all legitimate means to prosecute terrorists. 
Military commissions are one important option among many. So are 
Federal courts.
    Mr. Kris. The administration believes that reformed military 
commissions are appropriate for trying our enemies for war crimes--with 
a long tradition dating back to the Revolutionary War. That does not 
mean, however, that we should ignore other available means to fight our 
enemy--including intelligence gathering, diplomacy, and traditional law 
enforcement, including prosecution in Federal court. The same conduct 
that constitutes a war crime may also constitute an offense under our 
criminal code. We need to use all elements of national power to combat 
terrorism, including all legitimate means to prosecute terrorists. 
Military commissions are one important option among many. So are 
Federal courts.
    Admiral MacDonald. As I said in question 25, it is a policy 
determination as to whether the Nation chooses to pursue a case in one 
forum or another. So long as the military commissions are fair, and we 
are able to accept trial of our own servicemembers before similar 
tribunals for allegations of war crimes brought by another country, I 
believe trial by military commission is appropriate.
    Admiral Hutson. Because at its core, it is a crime. We don't ask 
DOJ to fight our wars; we shouldn't ask DOD to prosecute our criminal 
cases.
    General Altenburg. If your premise is that all terrorist attacks on 
civilians are war crimes, then certainly all such trials could be by 
military commission. This is not the case, however, as they are not 
necessarily violations of the law of war, and the UCMJ limits the use 
of military commissions to violations of the law of war. Moreover, the 
Supreme Court made clear in its Civil War-era cases that commissions 
could not be used to enforce domestic law against U.S. citizens when 
the courts are open and operating--a principle that is not applicable 
when U.S. citizens are tried for war crimes violations. Domestic 
terrorists such as Timothy McVeigh, Theodore Kaczynski, and Eric 
Rudolph carried out terrorist attacks on civilians to bring attention 
to their political agendas, but were U.S. citizens whose cases were 
properly handled as conventional criminal cases.
    Mr. Marcus. I am uncomfortable with the notion of a permanent ``war 
on terrorism.'' I think it is more consistent with our own systems of 
civilian and military justice, as well as international law, to limit 
the use of military commissions to war crimes committed during an 
actual armed conflict.

    27. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, doesn't use of 
different forums open the door for criticism that the United States is 
going back to a law enforcement focus on terrorism, or that military 
commissions are only for cases that can't be successfully tried in 
Article III courts and therefore amount to ``second-class justice?''
    Mr. Johnson. This administration is committed to using all 
instruments of national power to defeat terrorist extremists. This 
includes, but is not limited to, the prosecution of some terrorists in 
Article III courts. As the President said in his May 21 National 
Archives speech, we are at war against al Qaeda, and military 
commissions have a long history in the United States dating back to 
George Washington and the Revolutionary War. They are an appropriate 
venue for trying detainees for violations of the laws of war, and we 
believe that some detainees should be prosecuted in the law-of-war 
context. Military commissions are not ``second-class justice.'' The 
differences between the rules and procedures in Article III courts and 
military commissions are designed to account for the different issues 
attendant to prosecuting law of war violations. These rules are 
different; they are not ``second-class.'' We believe that section 1031 
of the 2010 NDAA passed by the Senate on July 23 is an important step 
toward additional reforms that are needed.
    Mr. Kris. This administration is committed to using all instruments 
of national power to defeat terrorist extremists. This includes, but is 
not limited to, the prosecution of some terrorists in Article III 
courts. As the President said in his May 21 National Archives speech, 
we are at war against al Qaeda, and military commissions have a long 
history in the United States dating back to George Washington and the 
Revolutionary War. They are an appropriate venue for trying detainees 
for violations of the laws of war, and we believe that some detainees 
should be prosecuted in the law-of-war context. Military commissions 
are not ``second-class justice.'' The differences between the rules and 
procedures in Article III courts and military commissions are designed 
to account for the different issues attendant to prosecuting law of war 
violations. These rules are different; they are not ``second-class.'' 
We believe that section 1031 of the 2010 NDAA passed by the Senate on 
July 23 is an important step toward additional reforms that are needed.
    Admiral MacDonald. Domestically, individual States, DOJ, and the 
military often have overlapping jurisdiction, and determinations are 
made in individual cases as to which sovereign and which forum is 
appropriate. Rules, criminal statutes, and potential penalties vary 
between the jurisdictions, but all forums are considered ``fair.'' 
Federal criminal disposition is often sought in some jurisdictions 
precisely because Federal statutes carry with them mandatory minimum 
sentences that are unavailable in state tribunals.
    In individual cases, different forums may be appropriate for 
different cases. So long as the military commissions are fair, and we 
are able to accept trial of our own servicemembers before similar 
tribunals, trial by military commission is appropriate, and military 
commissions should not be viewed as ``second-class justice.''
    Admiral Hutson. Precisely so.
    General Altenburg. Yes, but only one would have any credibility to 
it. The issue of ``going back to a law enforcement focus'' suggests a 
binary choice which has long been discredited by most serious 
participants in this debate. The fight against al Qaeda in particular 
and terrorism in general certainly has a law enforcement component--
witness the extraordinary work of the FBI among many other 
manifestations; it simply is not exclusively a law enforcement 
function. The danger of suggesting that commissions are a forum for 
second-class justice warrants the sober attention of law makers. 
Commissions long have functioned supplementary to the conventional 
court system because of the unique functions and features of this 
forum. A selection process that suggests that commissions are only 
employed for cases ``too weak'' for Article III courts will damage the 
functioning, credibility, and future use of this long-validated forum 
for bringing justice. Such inevitable criticisms can be alleviated by 
(1) referring only those cases strongly rooted in law of war violations 
to Military Commissions and (2) allowing a number of Military 
Commissions to complete their process without interruption so that the 
public has an opportunity to observe the military justice system at 
work. All facets of the Office of Military Commissions--the 
Prosecution, Defense, Judiciary, and Administrators--are staffed with 
talented, experienced professionals fiercely dedicated to producing 
full and fair trials. They deserve the opportunity to complete their 
mission.
    Mr. Marcus. No. Our military commission procedures, if improved as 
the Committee proposes, are not ``second-class justice''; indeed, they 
would provide defendants with more procedural rights and protections 
than are available in the regular criminal justice systems of most 
other countries. If we candidly articulate the reasons why some cases 
are brought in Federal courts and others in military commissions, we 
should be able to rebut any allegations of this kind.

                  detainee trials in the united states
    28. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, what are the 
advantages and disadvantages of holding trials in the United States?
    Mr. Johnson. Holding trials in the United States makes it possible 
to employ Federal courts, in addition to military commissions, to try 
those detainees who have committed Federal crimes. Federal courts have, 
on many occasions, proven to be an effective tool in our efforts to 
combat international terrorism, and the President has made clear that 
both Federal courts and military commissions should be available for 
this purpose.
    With regard to military commissions, it is not clear that moving 
them to the United States would have a significant impact on how they 
function as a legal matter, as basic due process protections may apply 
irrespective of the location of the commissions. Our goal is to create 
a military commissions system that is fair, effective, and legal, and 
that will survive appellate review, regardless of where the trials take 
place.
    Mr. Kris. Holding trials in the United States makes it possible to 
employ Federal courts, in addition to military commissions, to try 
those detainees who have committed Federal crimes. Federal courts have, 
on many occasions, proven to be an effective tool in our efforts to 
combat international terrorism, and the President has made clear that 
both Federal courts and military commissions should be available for 
this purpose.
    With regard to military commissions, it is not clear that moving 
them to the United States would have a significant impact on how they 
function as a legal matter, as basic due process protections may apply 
irrespective of the location of the commissions. Our goal is to create 
a military commissions system that is fair, effective, and legal, and 
that will survive appellate review, regardless of where the trials take 
place.
    Admiral MacDonald. My personal, professional opinion is that there 
would be no substantive legal differences between Military Commissions 
conducted inside the United States or in their current venue.
    Admiral Hutson. I can't think of any disadvantages, other than 
perhaps access to witnesses. The primary advantages are that this is 
where the courts are and Americans are victims of the crimes.
    General Altenburg. There are few, if any, advantages. Any site 
chosen to house prisoners pending Military Commission proceedings is 
likely to be in an isolated location more difficult to access than the 
relatively simple 3 hour flight from DC to Guantanamo. Disadvantages 
include increased likelihood that local Federal courts would interject 
themselves into the detention process and provide a venue for 
potentially frivolous litigation as the Military Commissions cases move 
forward, a greatly increased security risk, especially when detainees 
are being transported to and from the detention location; the cost 
would be considerable to recreate the detention and trial facilities 
which already exist at Guantanamo.
    Mr. Marcus. The advantages of holding military commission trials in 
the United States, rather than at GTMO, are substantial: First, we 
would no longer have to detain enemy combatants at GTMO, thus avoiding 
the international stigma that has arisen from the earlier problems 
there and that cannot be totally dissipated. Second, the logistics of 
trying cases in GTMO are daunting, particularly the problems of travel 
to GTMO and providing effective counsel to defendants. We will have a 
much easier time convincing the world of the fairness of our trials if 
they are held in the United States.

    29. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, would bringing the 
detainees into the United States for trial give them additional 
constitutional rights, such as the 5th Amendment due process concerns 
that recent media reports indicate were raised by the Office of Legal 
Counsel in May?
    Mr. Johnson. See our answer to question 17. We believe that, 
whether military commissions are convened in the United States or at 
Guantanamo, there is a significant risk, in light of the circumstances 
of the Guantanamo detainees, that courts will apply a baseline of due 
process protection in commission proceedings. This does not mean that 
courts will provide commission defendants with the same array of 
constitutional rights that defendants receive in Article III criminal 
trials. We do believe, however, that there is a significant risk courts 
would afford commission defendants with those due process protections 
that are ``so rooted in the traditions and conscience of our people as 
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97, 
105 (1934), regardless of whether commission proceedings are held at 
Guantanamo Bay or in the United States. It is not clear that moving 
commission trials to the United States would have a significant impact 
on how they function as a legal matter, as basic due process 
protections may apply irrespective of their location.
    Mr. Kris. See our answer to question 17. We believe that, whether 
military commissions are convened in the United States or at 
Guantanamo, there is a significant risk, in light of the circumstances 
of the Guantanamo detainees, that courts will apply a baseline of due 
process protection in commission proceedings. This does not mean that 
courts will provide commission defendants with the same array of 
constitutional rights that defendants receive in Article III criminal 
trials. We do believe, however, that there is a significant risk courts 
would afford commission defendants with those due process protections 
that are ``so rooted in the traditions and conscience of our people as 
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97, 
105 (1934), regardless of whether commission proceedings are held at 
Guantanamo Bay or in the United States. It is not clear that moving 
commission trials to the United States would have a significant impact 
on how they function as a legal matter, as basic due process 
protections may apply irrespective of their location.
    Admiral MacDonald. I am not aware of legal precedent, on point, for 
the proposition that the due process clause of the fifth amendment 
would apply to a prosecution of an alien unprivileged enemy belligerent 
before a Military Commission, whether convened within the United States 
or abroad.
    Admiral Hutson. I believe the key to constitutional rights follows 
the courts and the nationality of the accused, not the location of the 
piece of ground upon which the court is situated. If we hold the courts 
out of CONUS just to avoid providing certain protections, the court is 
doomed to failure anyway.
    General Altenburg. Perhaps. Obviously no one knows this for sure, 
because no one can project with certainty the continued development of 
the line of cases that includes but predates Quirin but also includes 
Boumediene, which purports not to overturn Quirin or Eisentrager, but 
substantially weakens both of those precedents. Bringing the detainees 
to the United States presents new opportunities for innovative defense 
counsel and guarantees protracted litigation.
    Mr. Marcus. I have not seen the OLC opinion. But my own view is 
that, while the issue of the constitutional due process rights of 
detainees in trials conducted at GTMO has not been ruled on by the 
courts, at the end of the day there are not likely to be significant 
differences between the constitutional rights that would apply at GTMO 
as opposed to the United States.

    30. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, what happens to 
detainees who are found not guilty at trial?
    Mr. Johnson. As a matter of legal authority, the question of guilt 
or innocence in a criminal prosecution is separate from the authority 
to detain under the law of war. However, relying on law of war 
authority to detain an individual in the current conflict after he has 
been acquitted in Federal court or in a military commission raises 
serious policy questions that we are continuing to consider. We note 
that, in the last administration, two of the individuals who were tried 
by military commission and received short sentences were returned to 
their home countries post-conviction and later released. We believe 
that this option would be appropriate for detainees who are acquitted 
at trial, where consistent with national security and the interests of 
justice.
    Mr. Kris. As a matter of legal authority, the question of guilt or 
innocence in a criminal prosecution is separate from the authority to 
detain under the law of war. However, relying on law of war authority 
to detain an individual in the current conflict after he has been 
acquitted in Federal court or in a military commission raises serious 
policy questions that we are continuing to consider. We note that, in 
the last administration, two of the individuals who were tried by 
military commission and received short sentences were returned to their 
home countries post-conviction and later released. We believe that this 
option would be appropriate for detainees who are acquitted at trial, 
where consistent with national security and the interests of justice.
    Admiral MacDonald. Each case would have to be dealt with based on 
its own facts and circumstances. As a practical matter, a detainee 
acquitted before a Military Commission would continue to be held in 
detention under the laws of war and the Authorization to Use Military 
Force, until released by order of the executive or his duly authorized 
subordinate. The Executive's order could be issued independently or in 
execution of a decision from a Federal court pursuant to a writ of 
habeas corpus. But the overarching point is that an acquittal does not, 
ipso facto, result in release if hostilities are still ongoing.
    Admiral Hutson. They are legally not guilty of the crime(s) for 
which they were prosecuted. Whether they continue to be incarcerated 
would depend on other findings. ``Not guilty'' does not necessarily 
mean ``innocent'' although it may.
    General Altenburg. They might be transferred to the home country or 
another nation. They could be considered for inclusion in the group of 
detainees too dangerous to release. They remain eligible under the law 
of war to be detained as enemy combatants until the end of hostilities. 
If tried in Article III courts, they might then fall into the category 
of persons who revert to indefinite INS detention because they cannot 
be released to any other country; this would be similar to individuals 
who arrived in the USA during the Mariel Boat Lift.
    Mr. Marcus. Theoretically, detainee combatants who are found not 
guilty at trial could continue to be detained until the end of the 
armed conflict. This would clearly be undesirable in most cases. But 
they would not in any event be entitled to release in the United 
States. As far as I know, none of the GTMO detainees are lawful 
residents of the United States, and they could therefore be detained as 
unlawful immigrants and deported.

    31. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, does a not guilty 
verdict at a trial conducted in the United States increase the chances 
that a detainee would be ordered released into the United States?
    Mr. Johnson. See the answer to question 2. As the President has 
stated, this administration will not choose to release any detainee 
into the United States who will endanger the American people. As noted 
in the answer to question 30, in the event a detainee is acquitted, it 
may be appropriate to transfer the detainee to his home country or a 
third country, where consistent with national security and applicable 
laws.
    Mr. Kris. See the answer to question 2. As the President has 
stated, this administration will not choose to release any detainee 
into the United States who will endanger the American people. As noted 
in the answer to question 30, in the event a detainee is acquitted, it 
may be appropriate to transfer the detainee to his home country or a 
third country, where consistent with national security and applicable 
laws.
    Admiral MacDonald. In my opinion it would not. The detainees at 
Guantanamo already have full access to habeas review in Federal courts 
under the Boumediene decision, and I am unaware of legal precedent for 
the proposition that they would be more likely to be ordered released 
pursuant to a habeas review if they were acquitted at a Military 
Commission held in the United States as opposed to the existing venue.
    Admiral Hutson. I don't believe so. The person, if released, should 
still be repatriated.
    General Altenburg. Yes.
    Mr. Marcus. No. See answer to question 30.

                          post-trial detention
    32. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, where should 
detainees who are convicted be incarcerated?
    Mr. Johnson. We are currently examining a number of different 
options for housing detainees. We can assure you that we will not move 
any detainees into the United States unless and until we are convinced 
that they will be held safely and securely in a facility or facilities 
that satisfy all of our security concerns and meet our legal 
obligations regarding treatment of the detainees.
    Mr. Kris. We are currently examining a number of different options 
for housing detainees. We can assure you that we will not move any 
detainees into the United States unless and until we are convinced that 
they will be held safely and securely in a facility or facilities that 
satisfy all of our security concerns and meet our legal obligations 
regarding treatment of the detainees.
    Admiral MacDonald. I believe this question is being considered by 
the detention policy task force established by the President, and it 
would not be appropriate for me to offer my personal opinion at this 
juncture.
    Admiral Hutson. Either in the United States or in a U.S. run prison 
in their country of origin.
    General Altenburg. Wherever they can be efficiently housed and 
secured without any chance of escape. Many facilities, including 
Guantanamo, provide such security. In fact, other than its reputation 
in some quarters, Guantanamo today is a model prison facility, as 
observed by the Attorney General after his visit to Guantanamo in 
January.
    Mr. Marcus. Those convicted by military commissions should be 
incarcerated in a high-security military prison in the United States or 
a high-security Federal prison. Those convicted in Federal courts 
should be detained in a high-security Federal prison.

                        detention review process
    33. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, what sort of system 
of review should apply to those detainees who we cannot try, but who 
are too dangerous to release?
    Mr. Johnson. See the answers to questions 2 and 22. As the 
President stated in his May 21 speech at the National Archives, for any 
detainees that may fall into this category, we will have ``a thorough 
process of periodic review, so that any prolonged detention is 
carefully evaluated and justified.'' We are currently in the process of 
determining the precise details of the periodic reviews.
    Mr. Kris. See the answers to questions 2 and 22. As the President 
stated in his May 21 speech at the National Archives, for any detainees 
that may fall into this category, we will have ``a thorough process of 
periodic review, so that any prolonged detention is carefully evaluated 
and justified.'' We are currently in the process of determining the 
precise details of the periodic reviews.
    Admiral MacDonald. Like the previous question, I believe this 
subject is being considered by the detention policy task force and I 
would not want to offer a personal opinion.
    However, as I answered in an earlier question, I believe the 
President has authority to detain unprivileged belligerents for the 
duration of hostilities. I also accept, as a general matter, that in a 
common Article III armed conflict, as the duration of hostilities and 
length of detention extend over years, the humane treatment obligations 
require greater levels of review, and additional accommodations must be 
made in the conditions of detention. In this regard, I support the 
findings and recommendation made in the Walsh report.
    Admiral Hutson. I am not convinced that such persons exist, 
although I realize that may be true. If they do, it should be a 
periodic, independent review.
    General Altenburg. A review tribunal similar to the CSRTs, with the 
decision ultimately made by the Secretary of Defense in consultation 
with the Attorney General.
    Mr. Marcus. The current CSRT review system is inadequate. Given the 
length of detention, we need a more independent system of regular 
reviews, focusing on continuing dangerousness, and with a presumption 
in favor of release after a specified period of time (say 10 or 15 
years) has elapsed. I would favor annual review hearings conducted by a 
Federal court or some new independent body, with a right to military 
and civilian counsel for the detainee.

    34. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, should military 
judges and lawyers be provided to the detainee for a parole board on a 
periodic basis?
    Mr. Johnson. See the answer to question 33. For any detainees that 
fall into this category the President has committed to ``a thorough 
process of periodic review, so that any prolonged detention is 
carefully evaluated and justified.'' We are currently in the process of 
determining the precise details of the periodic reviews.
    Mr. Kris. See the answer to question 33. For any detainees that 
fall into this category the President has committed to ``a thorough 
process of periodic review, so that any prolonged detention is 
carefully evaluated and justified.'' We are currently in the process of 
determining the precise detaiIs of the periodic reviews.
    Admiral MacDonald. This question also goes to a matter that is now 
under review by the detainee policy task force. I can't comment on the 
concept of parole boards, but as I noted in the last question, I do 
believe that as the length of detention extends over a period of years, 
our obligations to ensure humane treatment under common Article III 
include making additional accommodations in the conditions of detention 
and in the review process.
    Admiral Hutson. Parole boards for convicted detainees should be 
conducted like any other Federal parole board.
    General Altenburg. For periodic review of indefinite detention, 
attorneys should be provided, but never judges. For those convicted by 
the Military Commissions, parole should not be available to shorten an 
imposed sentence. This is consistent with Federal practice which has 
abolished parole. Seeking Presidential clemency could be a possible 
course of action.
    Mr. Marcus. Yes.

    35. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, who should get this 
special long-term detention review process? Those detainees at 
Guantanamo? Those at Bagram captured off the battlefield? All detainees 
held long-term?
    Mr. Johnson. See the answers to questions 2, 22, and 33. As the 
President has stated, any Guantanamo detainees who continue to be 
detained, where authorized by Congress and consistent with the law of 
war, will be afforded periodic reviews, so that any prolonged detention 
can be carefully evaluated and justified. New review procedures are 
also being put in place at the Bagram Theater Internment Facility, 
under which detainees held there will be provided biannual review of 
their detention.
    Mr. Kris. See the answers to questions 2, 22, and 33. As the 
President has stated, any Guantanamo detainees who continue to be 
detained, where authorized by Congress and consistent with the law of 
war, will be afforded periodic reviews, so that any prolonged detention 
can be carefully evaluated and justified. New review procedures are 
also being put in place at the Bagram Theater Internment Facility, 
under which detainees held there will be provided biannual review of 
their detention.
    Admiral MacDonald. This question is also under review by the 
administration. As I answered earlier, under the laws of war, 
unprivileged enemy belligerents may be detained for the duration of 
hostilities. I also believe that the obligation under the laws of war 
to treat detainees humanely includes a requirement to make additional 
accommodations in the conditions of detention and in the review 
process, as detention extends over a period of many years. In this 
regard I support the findings and recommendations in the Walsh report.
    Admiral Hutson. All detainees held long term. Again, location 
should not be determinative.
    General Altenburg. All detainees held long term. No system which 
allows the government to avoid detention review by simply moving the 
prisoner to a different location should be accepted as legitimate.
    Mr. Marcus. I would favor this beefed-up review process for all 
GTMO detainees who continue to be detained and for all non-battlefield 
detainees at Bagram.

    36. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, should detainees who 
were captured off the battlefield, but held at Bagram or other 
battlefield internment facilities, ever be granted the right to an 
Article III court review of their detention?
    Mr. Johnson. As we have argued in Maqaleh v. Gates, we do not 
believe that habeas rights extend to detainees captured outside of 
Afghanistan and transferred to Bagram for detention. Judicial review of 
detention on the battlefield in a theater of active military operations 
overseas raises significant operational concerns that are not present 
with respect to review of detention at Guantanamo Bay.
    Mr. Kris. As we have argued in Maqaleh v. Gates, we do not believe 
that habeas rights extend to detainees captured outside of Afghanistan 
and transferred to Bagram for detention. Judicial review of detention 
on the battlefield in a theater of active military operations overseas 
raises significant operational concerns that are not present with 
respect to review of detention at Guantanamo Bay.
    Admiral MacDonald. This question is now being litigated in Federal 
court in the Malaqeh v. Gates case, and I cannot comment.
    Admiral Hutson. Yes, unless we can devise a better system that the 
sham CSRTs have proven to be.
    General Altenburg. This result is likely unless Congress acts to 
provide for administrative review of long-term detentions in all 
overseas facilities.
    Mr. Marcus. At least one District Judge, John Bates, has held that 
habeas review in Article III courts is available to such detainees. 
While the D.C. Circuit and the Supreme Court have not addressed this 
question, I agree with Judge Bates's opinion.

                          habeas corpus review
    37. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, should a National 
Security Court be created to hear habeas corpus petitions or appeals of 
long-term detention?
    Mr. Johnson. Almost all of the Guantanamo detainees now have 
pending habeas cases in Federal court. We believe that this review is 
rigorous, independent, and effective as a means of establishing the 
lawfulness of the detentions, and that it should continue without any 
effort to evade or displace such review. We have not identified a need 
for a new National Security Court.
    Mr. Kris. Almost all of the Guantanamo detainees now have pending 
habeas cases in Federal court. We believe that this review is rigorous, 
independent, and effective as a means of establishing the lawfulness of 
the detentions, and that it should continue without any effort to evade 
or displace such review. We have not identified a need for a new 
National Security Court.
    Admiral MacDonald. I do not think such a court is necessary, and I 
note that all of the Guantanamo detainees already have habeas cases in 
Federal court, thus their long-term detention is already receiving 
judicial review.
    Admiral Hutson. No, I am not in favor of creating new courts. 
Existing courts are more than adequate and certainly better than a 
newly created court. All these are simply schemes to avoid ``real'' 
courts which have a proven record over the years of fairness with many, 
many successful prosecutions.
    General Altenburg. There is merit in the concept of designating a 
particular court to hear FISA requests and try terrorism cases; it can 
build specific facilities and provide trained judges for these types of 
cases. The creation of such a legal system will take many years and 
likely create substantial litigation, as illustrated by the time and 
litigation generated in the creation of the military commission legal 
system.
    Mr. Marcus. No. While there are some good arguments for a National 
Security Court, there are strong arguments against it, and the District 
Court for the District of Columbia is in effect becoming a specialized 
(and effective) national security court through its handling of the 
habeas cases.

    38. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, should Congress 
create uniform rules and procedures for conducting habeas corpus review 
for detainees?
    Mr. Johnson. Habeas corpus review of Guantanamo detentions is 
rigorous, independent, and effective as a means of establishing the 
lawfulness of the detentions. The cases are proceeding before judges in 
the District Court of the District of Columbia under a case management 
order, and many issues are being coordinated by the judges. We think 
this review should be allowed to continue, without any effort to evade 
or displace such review. We expect that any legislation adopted by 
Congress to regulate habeas corpus review of Guantanamo detentions for 
existing cases would result in delays in resolving these cases and 
litigation over the proper interpretation, and perhaps the 
constitutionality, of any rules and procedures adopted.
    Mr. Kris. Habeas corpus review of Guantanamo detentions is 
rigorous, independent, and effective as a means of establishing the 
lawfulness of the detentions. The cases are proceeding before judges in 
the District Court of the District of Columbia under a case management 
order, and many issues are being coordinated by the judges. We think 
this review should be allowed to continue, without any effort to evade 
or displace such review. We expect that any legislation adopted by 
Congress to regulate habeas corpus review of Guantanamo detentions for 
existing cases would result in delays in resolving these cases and 
litigation over the proper interpretation, and perhaps the 
constitutionality, of any rules and procedures adopted.
    Admiral MacDonald. It would be beneficial to have clear, uniform 
standards of review and procedure, and application of the laws of war 
as the substantive body of law controlling habeas decisions. The post-
Boumediene decisions within the U.S. District Court for the District of 
Columbia and the U.S. Court of Appeals for the D.C. Circuit have been 
encouraging on this point, and thus it may be unnecessary for Congress 
to intervene.
    Admiral Hutson. No.
    General Altenburg. Yes.
    Mr. Marcus. The District Court for the District of Columbia is 
doing a good job of developing effective and fair procedures. While 
there are some differences among the judges of that Court, they are not 
significant and they will be minimized over time as appeals are taken 
to the D.C. Circuit. Congress should watch these developments closely 
to see if legislation establishing uniform procedures is necessary or 
desirable.

    39. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, if Congress did 
enact such rules and procedures, what would happen to the existing 
assignment of habeas cases and the case management orders currently 
governing those hearings?
    Mr. Johnson. The effect on existing cases of any legislation 
adopted by Congress to regulate habeas corpus review of Guantanamo 
detentions would depend on what rules and procedures were enacted. At a 
minimum, we expect such legislation would result in delays in resolving 
these cases and litigation over the proper interpretation of, and 
perhaps the constitutionality, of any rules and procedures adopted.
    Mr. Kris. The effect on existing cases of any legislation adopted 
by Congress to regulate habeas corpus review of Guantanamo detentions 
would depend on what rules and procedures were enacted. At a minimum, 
we expect such legislation would result in delays in resolving these 
cases and litigation over the proper interpretation of, and perhaps the 
constitutionality, of any rules and procedures adopted.
    Admiral MacDonald. Because the effect of legislation to regulate 
habeas corpus review would depend on the exact rules and procedures 
enacted, it is impossible to predict what would happen to existing 
cases. Legislative changes could result in delays as courts are asked 
to review and interpret any new rules and procedures.
    Admiral Hutson. I don't know.
    General Altenburg. Congress should address this issue directly in 
enacting rules and procedures.
    Mr. Marcus. If Congress legislated in this area, the courts would 
be bound except to the extent that they determined that the legislated 
rules and procedures were unconstitutional.

    40. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, how does habeas 
corpus fit with a system of long-term detention review?
    Mr. Johnson. Habeas corpus review is playing an important role in 
ensuring that Guantanamo detention decisions are lawful. As the 
President has stated, prolonged detention of these individuals should 
not be the decision of any one person. Habeas review for Guantanamo 
detainees helps establish the lawfulness of our detention decisions and 
ensure that we can justify to an independent branch of government our 
decisions about who can be detained. The administration believes that 
habeas review of the Guantanamo detentions should continue, without any 
effort to evade or displace that review.
    Mr. Kris. Habeas corpus review is playing an important role in 
ensuring that Guantanamo detention decisions are lawful. As the 
President has stated, prolonged detention of these individuals should 
not be the decision of any one person. Habeas review for Guantanamo 
detainees helps establish the lawfulness of our detention decisions and 
ensure that we can justify to an independent branch of government our 
decisions about who can be detained. The administration believes that 
habeas review of the Guantanamo detentions should continue, without any 
effort to evade or displace that review.
    Admiral MacDonald. Habeas reviews of Guantanamo detainees following 
the Boumediene decision have applied the laws of war as the substantive 
body of law controlling the lawfulness of detention. I believe the 
courts are correct in so applying the laws of war. While this has 
worked well, so far, in the Guantanamo cases, I do not believe habeas 
should apply to detentions in areas of active hostilities.
    Admiral Hutson. Probably so.
    General Altenburg. Long-term detention of those individuals who are 
not tried by Article III courts or military commissions should require 
regular periodic reviews of the basis for their continued detention. 
Obviously, prisoners will challenge such review through the habeas 
process; this underscores the importance of providing periodic reviews 
which will stand up to such scrutiny by the district courts.
    Mr. Marcus. Habeas corpus would still be an important avenue for 
the courts to determine whether initial and continued detention was 
lawful. Improved procedures for making those determinations by the 
military should, over time, reduce the habeas burden on the Government 
and the courts.

    41. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, is habeas a separate 
process or should successive habeas petitions by detainees serve as 
independent court review of long-term detention?
    Mr. Johnson. See the answer to question 40. Habeas corpus review is 
playing an important role in ensuring that Guantanamo detention 
decisions are lawful. Even after a habeas court has upheld the 
lawfulness of detention, the detainee will be afforded periodic 
administrative reviews, so that any prolonged detention will be 
carefully evaluated and justified.
    Mr. Kris. See the answer to question 40. Habeas corpus review is 
playing an important role in ensuring that Guantanamo detention 
decisions are lawful. Even after a habeas court has upheld the 
lawfulness of detention, the detainee will be afforded periodic 
administrative reviews, so that any prolonged detention will be 
carefully evaluated and justified.
    Admiral MacDonald. In my view, habeas should be a separate process, 
focused on whether the Executive's detention of a particular detainee-
petitioner complies with the laws of war.
    Admiral Hutson. I'm sorry, but I'm not sure I understand the 
question adequately to intelligently answer.
    General Altenburg. Habeas is a separate civil proceeding with a 
specific statutory role in our criminal justice system. It should 
remain separate from the development of a systemic review of long-term 
detention.
    Mr. Marcus. If Congress establishes an adequate process for direct 
review of long-term detention decisions, or provides for those 
decisions to be made by a Federal court, there should be no need for 
separate habeas proceedings.

                          return to the fight
    42. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, how can we best 
ensure that those detainees who are released to another country don't 
return to the fight?
    Mr. Johnson. The United States Government employs a number of 
methods to help prevent former detainees from returning to the fight. 
When we transfer a detainee from Guantanamo we seek any necessary 
security assurances from the receiving country to mitigate possible 
threats posed by the transferred detainee. Part of our assessment in 
transferring a detainee to another country is whether a country will 
issue such security assurances and whether that country has the 
capability of fulfilling those assurances. In addition, the United 
States has transferred detainees to countries that have used 
rehabilitation programs to help mitigate the risk of returning to the 
fight. The United States also continues to work with our allies and 
partners to share intelligence, conduct cooperative security 
operations, and collect biometrics to prevent re-entry into the United 
States.
    Mr. Kris. The United States Government employs a number of methods 
to help prevent former detainees from returning to the fight. When we 
transfer a detainee from Guantanamo we seek any necessary security 
assurances from the receiving country to mitigate possible threats 
posed by the transferred detainee. Part of our assessment in 
transferring a detainee to another country is whether a country will 
issue such security assurances and whether that country has the 
capability of fulfilling those assurances. In addition, the United 
States has transferred detainees to countries that have used 
rehabilitation programs to help mitigate the risk of returning to the 
fight. The United States also continues to work with our allies and 
partners to share intelligence, conduct cooperative security 
operations, and collect biometrics to prevent re-entry into the United 
States.
    Admiral MacDonald. Each case must be assessed individually and risk 
mitigation plans tailored accordingly. As a general matter, the 
executive branch seeks to receive security assurances from the 
receiving State and, in appropriate cases, assurances that 
rehabilitation programs will be employed.
    Admiral Hutson. We can never guarantee that but we can best ensure 
it by providing fair trials and rehabilitation during incarceration. 
Warehousing people and trying them in sham trials will ensure they do 
return to the fight, or even engage in it for the first time.
    General Altenburg. Release only to nations we trust to monitor 
them.
    Mr. Marcus. This is a question best addressed to the administration 
witnesses. The best guarantee is effective agreements with foreign 
countries for rehabilitation and monitoring of former detainees.

                           closing guantanamo
    43. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald, 
Admiral Hutson, General Altenburg, and Mr. Marcus, if all the detainees 
cannot be tried or repatriated to another country by January 2010, what 
should we do about closing Guantanamo?
    Mr. Johnson. As the President has stated, rather than keeping us 
safe, the prison at Guantanamo Bay has weakened our national security 
by serving as a rallying cry for our enemies and reducing the 
willingness of our allies to work with us in fighting an enemy that 
operates in multiple countries. A bipartisan group of current and 
former senior U.S. Government officials and military leaders has called 
for the closure of the detention facility at Guantanamo Bay to enhance 
our national security, and this administration is determined to 
accomplish this within the 1 year timeframe directed by the President. 
We are actively working to prosecute as many detainees as possible 
before our Federal courts or in reformed military commissions, as well 
as to transfer to other countries those detainees who can safely be 
transferred. If there are some who can neither be prosecuted nor safely 
transferred, the President has made clear that ``[w]e must have clear, 
defensible, and lawful standards'' and ``a thorough process of periodic 
review, so that any prolonged detention is carefully evaluated and 
justified.'' Any such detention of the detainees currently at 
Guantanamo would be based on authorization from Congress, i.e., the 
2001 AUMF. See our answers to Questions 2, 22, and 33.
    Mr. Kris. As the President has stated, rather than keeping us safe, 
the prison at Guantanamo Bay has weakened our national security by 
serving as a rallying cry for our enemies and reducing the willingness 
of our allies to work with us in fighting an enemy that operates in 
multiple countries. A bipartisan group of current and former senior 
U.S. Government officials and military leaders has called for the 
closure of the detention facility at Guantanamo Bay to enhance our 
national security, and this administration is determined to accomplish 
this within the 1 year timeframe directed by the President. We are 
actively working to prosecute as many detainees as possible before our 
Federal courts or in reformed military commissions, as well as to 
transfer to other countries those detainees who can safely be 
transferred. If there are some who can neither be prosecuted nor safely 
transferred, the President has made clear that ``[w]e must have clear, 
defensible, and lawful standards'' and ``a thorough process of periodic 
review, so that any prolonged detention is carefully evaluated and 
justified.'' Any such detention of the detainees currently at 
Guantanamo would be based on authorization from Congress, i.e., the 
2001 AUMF. See our answers to Questions 2, 22, and 33.
    Admiral MacDonald. The President issued an Executive order on 22 
January 2009 directing the closure of detention facilities at 
Guantanamo no later than 1 year after the date of that order. As a 
uniformed officer, it would not be appropriate for me to speculate 
about alternatives that are inconsistent with the President's order.
    Admiral Hutson. Close it and imprison the detainees elsewhere.
    General Altenburg. The totality of the previous administration's 
practices and policies regarding detainees has produced unwarranted 
demonization of the facilities at Guantanamo. The confinement and court 
complexes recently constructed there are state of the art; all 
Americans should be proud of those facilities and the dedicated men and 
women who operate them. Guantanamo provides the current administration 
with a safe, secure, modern facility which should be re-considered as 
an option for detaining belligerents and conducting military 
commissions.
    Mr. Marcus. We should still close GTMO and transfer the remaining 
detainees to military prisons in the United States.
                                 ______
                                 
             Questions Submitted by Senator James M. Inhofe
                               post-trial
    44. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
assuming military commissions are held at Guantanamo, where will 
detainees who are convicted serve out their sentence--in the United 
States or somewhere else?
    Mr. Johnson. This determination will likely be made on a case-by-
case basis. Of the three individuals who have been convicted by 
military commissions to date, two were returned to their home 
countries, and one remains in United States custody at Guantanamo.
    Mr. Kris. This determination will likely be made on a case-by-case 
basis. Of the three individuals who have been convicted by military 
commissions to date, two were returned to their home countries, and one 
remains in U.S. custody at Guantanamo.
    Admiral MacDonald. This is a matter currently under review by the 
administration and it is not a matter under my cognizance.

    45. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
Federal Bureau of Investigation Director Robert Mueller said there is 
the very real possibility that the Guantanamo detainees will recruit 
more terrorists from among the Federal inmate population and continue 
al Qaeda operations from the inside. What is the impact of placing 
detainees in the U.S. prison system--pre-trial and post-trial?
    Mr. Johnson. We are currently examining a number of different 
options for housing Guantanamo detainees, including the possibility of 
housing them in facilities separate and apart from the Federal inmate 
population. There are sound legal and policy reasons to house any 
detainees held under law of war authority separately from criminal 
prisoners. In the event that any Guantanamo detainees are held in 
proximity to Federal inmates, special administrative measures (SAMs) 
are available where necessary and appropriate to restrict their 
communications, isolate them from other prisoners, and prevent violence 
to any person. See 28 CFR 501.3.
    Mr. Kris. We are currently examining a number of different options 
for housing Guantanamo detainees, including the possibility of housing 
them in facilities separate and apart from the Federal inmate 
population. There are sound legal and policy reasons to house any 
detainees held under law of war authority separately from criminal 
prisoners. In the event that any Guantanamo detainees are held in 
proximity to Federal inmates, special administrative measures (SAMs) 
are available where necessary and appropriate to restrict their 
communications, isolate them from other prisoners, and prevent violence 
to any person. See 28 CFR 501.3.
    Admiral MacDonald. I respectfully defer to the administration on 
this question, as it is not a matter under my cognizance.

    46. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
has an assessment been done to determine the risk of escape as well as 
potentially creating targets in the United States for terrorist 
attacks?
    Mr. Johnson. We will not move any detainees into the United States 
unless and until we are convinced that the detainees will be held 
safely and securely in a facility that satisfies all of our security 
concerns. We note that 33 international terrorists are currently housed 
in the Bureau of Prisons' administrative maximum (ADX) facility, 
sometimes referred to as ``supermax.'' Nobody has ever escaped from the 
ADX.
    Mr. Kris. We will not move any detainees into the United States 
unless and until we are convinced that the detainees will be held 
safely and securely in a facility that satisfies all of our security 
concerns. We note that 33 international terrorists are currently housed 
in the Bureau of Prisons' administrative maximum (ADX) facility, 
sometimes referred to as ``supermax.'' Nobody has ever escaped from the 
ADX.
    Admiral MacDonald. I respectfully defer to the administration on 
this question, as a risk assessment of this sort is not under my 
cognizance.

    47. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
will Guantanamo detainees be segregated from the regular prison 
population?
    Mr. Johnson. We are currently examining a number of different 
options for housing Guantanamo detainees, including the possibility of 
housing them in facilities separate and apart from the Federal inmate 
population. There are sound legal and policy reasons to house any 
detainees held under law of war authority separately from criminal 
prisoners.
    Mr. Kris. We are currently examining a number of different options 
for housing Guantanamo detainees, including the possibility of housing 
them in facilities separate and apart from the Federal inmate 
population. There are sound legal and policy reasons to house any 
detainees held under law of war authority separately from criminal 
prisoners.
    Admiral MacDonald. I defer to the administration on this question 
as it is not a matter under my cognizance.

    48. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
currently, the United States has only one Supermax facility and it is 
located in Florence, Colorado. According to a Bureau of Prisons 
official, ``only one bed was not filled at Supermax'' as of May 21. 
What facilities exist in the United States today that can hold these 
detainees?
    Mr. Johnson. As the administration works toward closing the 
detention facility at Guantanamo Bay, Cuba, we are carefully 
considering the various options as to where detainees could be housed. 
These deliberations are ongoing, and therefore it would be 
inappropriate to comment or speculate as to the outcome of that 
determination or to discuss specific facilities. We can assure you, 
however, that we will not move any detainees into the United States 
unless and until we are convinced that the detainees will be held 
safely and securely in a facility that satisfies all of our security 
concerns and meets our legal obligations regarding treatment of the 
detainees.
    Mr. Kris. As the administration works toward closing the detention 
facility at Guantanamo Bay, Cuba, we are carefully considering the 
various options as to where detainees could be housed. These 
deliberations are ongoing, and therefore it would be inappropriate to 
comment or speculate as to the outcome of that determination or to 
discuss specific facilities. We can assure you, however, that we will 
not move any detainees into the United States unless and until we are 
convinced that the detainees will be held safely and securely in a 
facility that satisfies all of our security concerns and meets our 
legal obligations regarding treatment of the detainees.
    Admiral MacDonald. It is my understanding that the subject matter 
of this question is under review by the administration and it is not a 
matter within my cognizance. Therefore, I respectfully defer to the 
administration.

    49. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
today the Guantanamo detainees are held under well-established laws of 
war permitting belligerents to confine captured enemies until 
hostilities are over. What if a detainee is found not guilty--where 
will he be released?
    Mr. Johnson. As a matter of legal authority, the question of guilt 
or innocence in a criminal prosecution is separate from the authority 
to detain under the law of war. However, relying on law of war 
authority to detain an individual in the current conflict after he has 
been acquitted in Federal court or in a military commission raises 
serious policy questions that we are continuing to consider. We note 
that, in the last administration, two of the individuals who were tried 
by military commission and received short sentences were returned to 
their home countries post-conviction and later released. We believe 
that this option would be appropriate for detainees who are acquitted 
at trial, where consistent with national security and the interests of 
justice.
    Mr. Kris. As a matter of legal authority, the question of guilt or 
innocence in a criminal prosecution is separate from the authority to 
detain under the law of war. However, relying on law of war authority 
to detain an individual in the current conflict after he has been 
acquitted in Federal court or in a military commission raises serious 
policy questions that we are continuing to consider. We note that, in 
the last administration, two of the individuals who were tried by 
military commission and received short sentences were returned to their 
home countries post-conviction and later released. We believe that this 
option would be appropriate for detainees who are acquitted at trial, 
where consistent with national security and the interests of justice.
    Admiral MacDonald. As I answered in response to Senator McCain (see 
question # 30), each case would have to be dealt with based on its own 
facts and circumstances. As a practical matter, a detainee acquitted 
before a Military Commission would continue to be held in detention 
under the laws of war and the Authorization to Use Military Force, 
until released by order of the executive or his duly authorized 
subordinate. The Executive's order could be issued independently or in 
execution of a decision from a Federal court pursuant to a writ of 
habeas corpus. But the overarching point is that an acquittal does not, 
ipso facto, result in release if hostilities are still ongoing.

    50. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
what does the administration plan to do when a Federal judge orders the 
release of a detainee but who the administration knows is too dangerous 
to release or transfer?
    Mr. Johnson. As the President has stated, the United States is a 
nation of laws and we must abide by court rulings. At the same time, 
the administration will not voluntarily release into the United States 
any detainees who would endanger the American people. If a detainee is 
ordered released by a habeas court, we will work to develop transfer or 
resettlement options that satisfy our security concerns, consistent 
with the rulings of the court. Moreover, as noted above, for detainees 
in the United States, authority to detain individuals under the 
immigration laws pending their removal, particularly where they pose a 
threat to national security, is an additional mechanism that may be 
used if necessary to ensure that detainees will not endanger our 
citizens.
    Mr. Kris. As the President has stated, the United States is a 
nation of laws and we must abide by court rulings. At the same time, 
the administration will not voluntarily release into the United States 
any detainees who would endanger the American people. If a detainee is 
ordered released by a habeas court, we will work to develop transfer or 
resettlement options that satisfy our security concerns, consistent 
with the rulings of the court. Moreover, as noted above, for detainees 
in the United States, authority to detain individuals under the 
immigration laws pending their removal, particularly where they pose a 
threat to national security, is an additional mechanism that may be 
used if necessary to ensure that detainees will not endanger our 
citizens.
    Admiral MacDonald. If a Federal judge orders the release of a 
detainee, the government would comply with the order to the fullest of 
its ability or seek to appeal to a higher court.

    51. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
what do you do with a detainee you cannot try or release due to 
national security concerns?
    Mr. Johnson. As the President stated in his National Archives 
address, although we are going to exhaust every avenue that we have to 
prosecute those at Guantanamo who pose a danger to our country, there 
may ultimately be a category of Guantanamo detainees ``who cannot be 
prosecuted for past crimes,'' but ``who nonetheless pose a threat to 
the security of the United States'' and ``in effect, remain at war with 
the United States.'' For the detainees at Guantanamo, the President has 
stated that ''[w]e must have clear, defensible, and lawful standards'' 
and ``a thorough process of periodic review, so that any prolonged 
detention is carefully evaluated and justified.'' Any such detention 
will be based on authorization from Congress, i.e., the 2001 AUMF. As 
the Supreme Court held in Hamdi v. Rumsfeld, and as the administration 
has explained in filings in recent habeas cases, the detention 
authority Congress has conferred under the AUMF should be informed by 
the laws of war, which have long permitted detention of enemy forces to 
ensure that they not return to the fight.
    Mr. Kris. As the President stated in his National Archives address, 
although we are going to exhaust every avenue that we have to prosecute 
those at Guantanamo who pose a danger to our country, there may 
ultimately be a category of Guantanamo detainees ``who cannot be 
prosecuted for past crimes,'' but ``who nonetheless pose a threat to 
the security of the United States'' and ``in effect, remain at war with 
the United States.'' For the detainees at Guantanamo, the President has 
stated that ``[w]e must have clear, defensible, and lawful standards'' 
and ``a thorough process of periodic review, so that any prolonged 
detention is carefully evaluated and justified.'' Any such detention 
will be based on authorization from Congress, i.e., the 2001 AUMF. As 
the Supreme Court held in Hamdi v. Rumsfeld, and as the administration 
has explained in filings in recent habeas cases, the detention 
authority Congress has conferred under the AUMF should be informed by 
the laws of war, which have long permitted detention of enemy forces to 
ensure that they not return to the fight.
    Admiral MacDonald. The laws of war and the AUMF do not require that 
unprivileged enemy belligerents be referred to trial or released. They 
may be detained for the duration of hostilities.

    52. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
what is the risk of releasing Guantanamo detainees given the recidivism 
rate is 1 in 7?
    Mr. Johnson. There are always risks in releasing detainees, whether 
from Guantanamo, or in Iraq or Afghanistan, or from our Federal 
prisons. Recidivism is always a possibility. The prior administration 
released and transferred abroad well over 500 detainees from Guantanamo 
Bay, and some have returned to the fight. But the United States does 
everything it can to mitigate these risks, including seeking any 
necessary security assurances from the receiving country, arranging for 
detainees to enter rehabilitation programs, and collecting biometrics 
to prevent re-entry into the United States. In reviewing a detainee for 
transfer, release, prosecution, or detention, our primary concerns are 
always our national security interests, the safety of the America 
people, and the rule of law.
    Mr. Kris. There are always risks in releasing detainees, whether 
from Guantanamo, or in Iraq or Afghanistan, or from our Federal 
prisons. Recidivism is always a possibility. The prior administration 
released and transferred abroad well over 500 detainees from Guantanamo 
Bay, and some have returned to the fight. But the United States does 
everything it can to mitigate these risks, including seeking any 
necessary security assurances from the receiving country, arranging for 
detainees to enter rehabilitation programs, and collecting biometrics 
to prevent re-entry into the United States. In reviewing a detainee for 
transfer, release, prosecution, or detention, our primary concerns are 
always our national security interests, the safety of the American 
people, and the rule of law.
    Admiral MacDonald. The risk of releasing Guantanamo detainees is 
that some may return to the battle. That risk is taken into account in 
the review process of individual cases. As a general matter, if a 
detainee is to be released to another country, the executive branch 
seeks to receive security assurances from the receiving State and, in 
appropriate cases, assurances that rehabilitation programs will be 
employed.

    53. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
when does the administration plan to ask permission from Congress to 
authorize long-term detention of detainees?
    Mr. Johnson. Congress has already provided authorization through 
the AUMF to detain persons who the President determines planned, 
authorized, committed, or aided the terrorist attacks that occurred on 
September 11, 2001, persons who harbored those responsible for those 
attacks, and persons who were part of, or substantially supported, 
Taliban or al Qaeda forces or associated forces that are engaged in 
hostilities against the United States or its coalition partners. Habeas 
courts are actively reviewing the government's detention decisions with 
respect to Guantanamo detainees. The administration is not currently 
seeking additional authorization.
    Mr. Kris. Congress has already provided authorization through the 
AUMF to detain persons who the President determines planned, 
authorized, committed, or aided the terrorist attacks that occurred on 
September 11, 2001, persons who harbored those responsible for those 
attacks, and persons who were part of, or substantially supported, 
Taliban or al Qaeda forces or associated forces that are engaged in 
hostilities against the United States or its coalition partners. Habeas 
courts are actively reviewing the government's detention decisions with 
respect to Guantanamo detainees. The administration is not currently 
seeking additional authorization.
    Admiral MacDonald. I respectfully defer to the administration on 
any question concerning the administration's intentions regarding 
possible introduction of legislation relating to detainees.

                             trial location
    54. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
the Expeditionary Legal Complex (ELC) provides a secure location to 
secure and try detainees charged by the U.S. Government, full access to 
sensitive and classified information, full access to defense lawyers 
and prosecution, and full media access by the press. Moving detainees 
to prisons in the United States as well as trying them in the United 
States will require a significant investment and re-structuring of our 
existing detention facilities. In 2002, an entire wing of a jail in 
Alexandria, Virginia, was cleared out for the September 11 ``20th 
Hijacker,'' Zacarias Moussaoui, to be housed for his trial--just for 
one detainee. Where will military commissions be held--at Guantanamo or 
in the United States?
    Mr. Johnson. We are currently considering all possible options. 
That said, the President has committed to closing Guantanamo by the end 
of January 2010. As the President has stated, rather than keep us safe, 
the prison at Guantanamo Bay has weakened our national security by 
serving as a rallying cry for our enemies and reducing the willingness 
of our allies to work with us in fighting an enemy that operates in 
multiple countries. A bipartisan group of current and former senior 
U.S. government officials and 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 accomplish 
this within the 1-year timeframe directed by the President.
    Mr. Kris. We are currently considering all possible options. That 
said, the President has committed to closing Guantanamo by the end of 
January 2010. As the President has stated, rather than keep us safe, 
the prison at Guantanamo Bay has weakened our national security by 
serving as a rallying cry for our enemies and reducing the willingness 
of our allies to work with us in fighting an enemy that operates in 
multiple countries. A bipartisan group of current and former senior 
U.S. Government officials and 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 accomplish 
this within the 1-year timeframe directed by the President.
    Admiral MacDonald. I have not been involved in any discussions 
regarding the location, or potential location, for military 
commissions. That determination will be made by the administration.

    55. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
assuming military commissions are held at Guantanamo, what additional 
constitutional rights will a detainee gain if they are tried in the 
United States versus Guantanamo?
    Mr. Johnson. See our answer to question 17. We believe that, 
whether military commissions are convened in the United States or at 
Guantanamo, there is a significant risk, in light of the circumstances 
of the Guantanamo detainees, that courts will apply a baseline of due 
process protection in commission proceedings. This does not mean that 
courts will provide commission defendants with the same array of 
constitutional rights that defendants receive in Article III criminal 
trials. We do believe, however, that there is a significant risk courts 
would afford commission defendants with those due process protections 
that are ``so rooted in the traditions and conscience of our people as 
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97, 
105 (1934), regardless of whether commission proceedings are held at 
Guantanamo Bay or in the United States. It is not clear that moving 
commission trials to the United States would have a significant impact 
on how they function as a legal matter, as basic due process 
protections may apply irrespective of their location.
    Mr. Kris. See our answer to question 17. We believe that, whether 
military commissions are convened in the United States or at 
Guantanamo, there is a significant risk, in light of the circumstances 
of the Guantanamo detainees, that courts will apply a baseline of due 
process protection in commission proceedings. This does not mean that 
courts will provide commission defendants with the same array of 
constitutional rights that defendants receive in Article III criminal 
trials. We do believe, however, that there is a significant risk courts 
would afford commission defendants with those due process protections 
that are ``so rooted in the traditions and conscience of our people as 
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97, 
105 (1934), regardless of whether commission proceedings are held at 
Guantanamo Bay or in the United States. It is not clear that moving 
commission trials to the United States would have a significant impact 
on how they function as a legal matter, as basic due process 
protections may apply irrespective of their location.
    Admiral MacDonald. The Supreme Court held in Boumediene, that 
detainees held at Guantanamo have a right to habeas review under the 
Suspension Clause of the Constitution. The Court did not extend other 
Constitutional protections to those detainees, and subsequent decisions 
by lower courts have held that the holding in Boumediene was limited to 
the Suspension Clause. I am not aware of any precedent, on point, that 
would extend other Constitutional rights to alien unprivileged enemy 
belligerents detained under the laws of war, whether held within the 
United States or outside the United States.

    56. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
are there differences in the rights awarded to detainees tried in a 
military commission versus civilian court? Could location or geography 
affect the right afforded to detainees (somewhere in the United States 
versus Guantanamo)?
    Mr. Johnson. Properly reformed military commissions are uniquely 
situated to take into account the realities of the battlefield and the 
particular challenges of gathering evidence during military operations 
overseas, while also providing due process to the accused. For example, 
some of our customary rules of criminal procedure, such as Miranda-like 
warnings, are not required in the military commissions legislation that 
passed the Senate.
    With regard to location, it is not clear that moving the trials to 
the United States would have a significant impact on how they function 
as a legal matter, as basic due process protections may apply 
irrespective of their location. Our goal is to create a military 
commissions system that is fair, effective, and legal, and will survive 
appellate review, regardless of where the trials take place.
    Mr. Kris. Properly reformed military commissions are uniquely 
situated to take into account the realities of the battlefield and the 
particular challenges of gathering evidence during military operations 
overseas, while also providing due process to the accused. For example, 
some of our customary rules of criminal procedure, such as Miranda-like 
warnings, are not required in the military commissions legislation that 
passed the Senate.
    With regard to location, it is not clear that moving the trials to 
the United States would have a significant impact on how they function 
as a legal matter, as basic due process protections may apply 
irrespective of their location. Our goal is to create a military 
commissions system that is fair, effective, and legal, and will survive 
appellate review, regardless of where the trials take place.
    Admiral MacDonald. As I noted in my answer to question 55, I 
believe that the rights afforded to detainees within the draft military 
commissions legislation under consideration by this committee will be 
sufficient to protect whatever rights a detainee has regardless of the 
physical location of the commission. Those rights are not identical to 
the rights that are found in civilian courts.
    Both commissions and civilian courts offer a right of 
confrontation, a right of counsel, the right to be present during the 
introduction of evidence, a right to remain silent, protection against 
statements obtained by torture or cruel, inhuman or degrading 
treatment, a right of due process, a right to an impartial judge, and 
appellate review. Both include a presumption of innocence, proof beyond 
a reasonable doubt, protection against double jeopardy, and the right 
to 12 members in a capital case.
    However, the right of confrontation in criminal courts forbids the 
introduction of testimonial hearsay. Commissions permit hearsay if 
reliable. Domestic courts use a voluntariness standard for 
admissibility of statements of a defendant, while commissions rules 
would permit a military judge to consider voluntariness as an aspect of 
determining both reliability and admissibility in the interests of 
justice. Due process rights before commissions is informed by the law 
of war, permitting substitutes for domestic norms, such as trial by 
members rather than trial by jury, and trial based upon sworn charges 
rather than indictment. The right to a Miranda warning is well founded 
in domestic law, but is not required for admission of statements in a 
military commission because it is inconsistent with the duties of a 
Soldier or Marine conducting a battlefield interrogation. Similarly, 
search and seizure laws applicable under the Fourth Amendment generally 
do not apply to searches and seizures outside of the United States.

                  protection of classified information
    57. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
some classified information that could be essential to the conviction 
of these detainees is still extremely sensitive and could compromise 
ongoing activities as well as American lives. How do we handle 
protection of classified information during trials?
    Mr. Johnson. Ensuring that classified information is adequately 
safeguarded in order to protect our national security is a paramount 
concern for the administration. The system provided by CIPA for 
criminal cases prosecuted in Federal Court has generally worked well in 
protecting classified information, while also ensuring a fair, 
credible, and effective trial. We have worked closely with the 
committee staff to develop the Levin-Graham-McCain amendment that was 
adopted by the Senate on July 23, and provides for a modified version 
of CIPA that reflects lessons learned from past terrorism prosecutions. 
We are grateful for the work of the committee staff in developing 
procedures that will adequately protect classified information and 
advance the President's objective of reforming the commissions and 
ensuring that they are a fair, legitimate, and effective forum for the 
prosecution of law of war offenses.
    Mr. Kris. Ensuring that classified information is adequately 
safeguarded in order to protect our national security is a paramount 
concern for the administration. The system provided by CIPA for 
criminal cases prosecuted in Federal Court has generally worked well in 
protecting classified information, while also ensuring a fair, 
credible, and effective trial. We have worked closely with the 
committee staff to develop the Levin-Graham-McCain amendment that was 
adopted by the Senate on July 23, and provides for a modified version 
of CIPA that reflects lessons learned from past terrorism prosecutions. 
We are grateful for the work of the committee staff in developing 
procedures that will adequately protect classified information and 
advance the President's objective of reforming the commissions and 
ensuring that they are a fair, legitimate, and effective forum for the 
prosecution of law of war offenses.
    Admiral MacDonald. The provisions addressing classified evidence 
permitted a military judge to determine the reliability of underlying 
evidence, and redact classified sources and methods from material 
provided to the defense. The standards for discovery and use in 
military commisions are similar to those found in courts-martial, but 
given the lack of a robust body of case law interpreting those rules, 
the rules addressing classified information fail to provide clear 
guidance to military judges and practitioners regarding both the 
standards for discovery and the procedures to be used in obtaining ex 
parte review of petitions from the government. The rules governing 
classified information have no clear analogue in either courts-martial 
or Article III courts, depriving commissions of the benefit of the 
jurisprudence that exists under established norms in either courts-
martial or district courts. Without such clear guidance, counsel have 
been unable to obtain ex parte hearings to expedite the resolution of 
classified information issues, and have had to seek multiple protective 
orders to ensure all information, regardless of source, is properly 
protected.
    I recommend that the classified information rules be altered, 
relying on CIPA as a touchstone for starting the draft, incorporating 
the lessons learned from commissions to date, and those provisions of 
MRE 505 that permit closure of the proceedings when warranted. Counsel 
and military judges will then have the benefit of more than 20 years of 
jurisprudence from CIPA application to guide the use of the rules.

                         long-term implications
    58. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
what are the long-term implications on future conflicts of trying these 
detainees in a civil court versus military commissions?
    Mr. Johnson. As we testified before the committee, the 
administration is committed to using all elements of national power and 
authority--including the systems of justice in both Federal courts and 
military commissions--to defeat our enemy and to advance the interests 
of justice. Federal courts have been used successfully many times 
before to try and convict suspected terrorists, including individuals 
affiliated with al Qaeda. We have developed a protocol to determine 
whether cases will be tried in a military commission or a Federal 
court, and will make these determinations on a case by case basis. The 
protocol is attached (see Annex A). We do not believe that these 
determinations will foreclose any options for the future.
    Mr. Kris. As we testified before the committee, the administration 
is committed to using all elements of national power and authority--
including the systems of justice in both Federal courts and military 
commissions--to defeat our enemy and to advance the interests of 
justice. Federal courts have been used successfully many times before 
to try and convict suspected terrorists, including individuals 
affiliated with al Qaeda. We have developed a protocol to determine 
whether cases will be tried in a military commission or a Federal 
court, and will make these determinations on a case-by-case basis. The 
protocol is attached (see Annex A). We do not believe that these 
determinations will foreclose any options for the future.
    Admiral MacDonald. Each case deserves an individual determination 
as to whether or where a trial might be conducted. There may be 
individual instances where a determination may be warranted to 
criminally prosecute a case in an Article III court, depending on 
factors such as the citizenship of the accused, the location of the 
offense, the status of the victims, or the particularities of the 
crime. Ultimately, it is a policy determination as to whether the 
administration chooses to pursue a case in one forum or another. No 
matter whether or how that determination is made, however, I think it 
is important that the system for military commissions we establish is 
fair, and that we are confident enough in the fairness and legality of 
their rules and procedures that we would accept trial of our own 
servicemembers before similar tribunals for allegations of war crimes 
brought by another country.

                             miranda rights
    59. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
currently, new intelligence is continually being collected from 
detainees at Guantanamo and is being used to fight terrorists in Iraq, 
Afghanistan, and around the globe. According to former Central 
Intelligence Agency Director George Tenet, upon Khalid Sheikh 
Mohammad's capture on March 1, 2003, he said: ``I'll talk to you guys 
after I get to New York and see my lawyer.'' Why is the administration 
reading Miranda Rights to some detainees captured or held in Iraq and 
Afghanistan? How many are being read Miranda Rights? How many have 
invoked their rights?
    Mr. Johnson. First, it should be made clear that Miranda warnings 
are never given by our soldiers on the battlefield or in any other 
circumstance where they would have an adverse impact on military or 
intelligence operations. 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.
    Under policies that have been in place for years (including under 
the previous administration), Miranda warnings are only given in a very 
small number of cases after an individual has been removed from the 
battlefield, and only when consistent with military and intelligence 
needs. This administration is committed to using all instruments of 
national power to defeat terrorist extremists. This includes, and will 
continue to include, the prosecution of some terrorists in Article III 
courts. In that event, U.S. law enforcement personnel have, in a 
handful of situations, been permitted to question detainees who are 
potential prospects for prosecution, accompanied by Miranda warnings. 
The warnings are never given if doing so will hinder our 
counterterrorism efforts.
    Mr. Kris. First, it should be made clear that Miranda warnings are 
never given by our soldiers on the battlefield or in any other 
circumstance where they would have an adverse impact on military or 
intelligence operations. 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.
    Under policies that have been in place for years (including under 
the previous administration), Miranda warnings are only given in a very 
small number of cases after an individual has been removed from the 
battlefield, and only when consistent with military and intelligence 
needs. This administration is committed to using all instruments of 
national power to defeat terrorist extremists. This includes, and will 
continue to include, the prosecution of some terrorists in Article III 
courts. In that event, U.S. law enforcement personnel have, in a 
handful of situations, been permitted to question detainees who are 
potential prospects for prosecution, accompanied by Miranda warnings. 
The warnings are never given if doing so will hinder our 
counterterrorism efforts.
    Admiral MacDonald. It has been the longstanding practice of the 
U.S. Government to use Miranda warnings in a very small number of cases 
in which it is important to our national security to ensure that 
statements made by terrorist suspects can be used in a criminal 
prosecution. However, the warnings are given in locations removed from 
the battlefield, and only after the military's intelligence-gathering 
and force protection needs have been met. The decision as to whether or 
not to give a warning is made by experienced career professionals in 
consultation with military and intelligence officials. The warnings are 
never given if the professionals conclude that doing so will hinder our 
counterterrorism efforts.
    I do not know the number of cases in which a detainee has invoked 
his right to silence.

    60. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
what is the impact of requiring the reading of Miranda Rights to 
terrorists captured on the battlefield and advising them they have the 
right to remain silent?
    Mr. Johnson. See the answer to question 59.
    Mr. Kris. See the answer to question 59.
    Admiral MacDonald. The impact of requiring Miranda warnings on the 
battlefield would be significant. Soldiers seek actionable intelligence 
in order to achieve the mission, and any requirement that impinges on 
obtaining such information would endanger both the mission and the 
lives of servicemembers who require that information to subdue the 
enemy in battle. Soldiers must be free to exercise their full authority 
under the law of war to obtain actionable intelligence, or risk 
compromise of the mission and safety of our troops.
    However, where the provision of Miranda rights will not risk 
compromise of the mission or safety of our troops, providing Miranda 
warnings may enable the government to keep all options on the table, 
thus helping to ensure that those who commit terrorist acts against our 
citizens can be brought to justice, whether in Federal courts or 
military commissions.
                                 ______
                                 
              Questions Submitted by Senator Jeff Sessions
                            capital charges
    61. Senator Sessions. Mr. Kris, the MCA has been construed by some 
military judges to prevent prosecutors from pursuing capital charges 
against a defendant if he pleads guilty. This is not the case in the 
civilian system, right? In other words, in State and Federal courts, a 
defendant who pleads guilty can still be charged with a capital 
offense?
    Mr. Kris. In the Federal civilian system, as well as in the vast 
majority of the States which currently have capital punishment, the 
death penalty can be imposed after a guilty plea. The question of 
whether the MCA and commissions rules permit the death penalty to be 
imposed after a guilty plea in military commissions is currently the 
subject of litigation that is pending before the commissions. We have 
argued in litigation that the existing law allows for the imposition of 
the death penalty after a guilty plea to capital charges. No courts 
have ruled on the question to date.

    62. Senator Sessions. Mr. Kris, the courts' interpretation of the 
MCA makes it harder to pursue a capital case, in the case of a 
defendant who pleads guilty, than it would be if the same unlawful 
belligerent were prosecuted in State or Federal court--or if a U.S. 
citizen were prosecuted for murder in State or Federal court. Is that 
correct?
    Mr. Kris. Whether the death penalty can be imposed after a guilty 
plea under the MCA is the subject of pending litigation and no courts 
have ruled on this question to date. In the Federal system, and in the 
vast majority of the States which currently have capital punishment, 
the death penalty can be imposed after a guilty plea.

    63. Senator Sessions. Mr. Kris, if Khalid Sheikh Muhammad, for 
example, began to have doubts about the heavenly reward that has been 
promised to him by Osama bin Laden in the event of his death, could he 
simply plead guilty, and thereby ensure that no capital charges can be 
brought against him?
    Mr. Kris. Whether a defendant chooses to plead guilty or go to 
trial has no bearing on which charges can be brought; the question is 
solely about the punishment, that is, whether the death penalty can be 
imposed based on a conviction resulting from a guilty plea rather than 
a finding of guilt after a trial. This question is the subject of 
pending litigation before the military commissions, as discussed above.

    64. Senator Sessions. Mr. Kris, do you believe that Congress should 
correct this anomaly?
    Mr. Kris. We have argued in litigation that the existing statute 
and rules allow for the imposition of the death penalty after a guilty 
plea to capital charges. The administration has not taken a position on 
whether this matter requires any further congressional action.

                         classified information
    65. Senator Sessions. Mr. Kris, the committee-reported NDAA 
requires that, before the government may seek protection for classified 
information, it first must certify that the information in question has 
been declassified ``to the maximum extent possible.'' Does the 
administration support this change--and if not, why do you believe that 
it is unsound?
    Mr. Kris. A provision in the bill passed by the Senate Armed 
Services Committee allowed the use of traditional CIPA protections for 
classified evidence--such as substitutions--only after an agency head 
or original classifying authority has certified that the evidence has 
been declassified to the maximum extent possible. The administration 
expressed concern that this provision has no analogue in CIPA or the 
UCMJ, and created a potentially burdensome process of declassifying 
information for which disclosure might not be ordered after an ex parte 
review by a military judge or district court.
    On July 23, the Senate adopted an amendment to revise the section 
of the bill governing the handling of classified information in 
military commission trials. Among other things, this amendment removed 
this requirement.

    66. Senator Sessions. Mr. Kris, I understand that there is an 
ambiguity in the MCA as to whether it allows presentations in support 
of a motion to protect classified evidence to be presented ex parte. 
Some judges apparently think that only the written motion may be filed 
ex parte, but that an oral presentation in support of the motion cannot 
be made to the court ex parte. In the Federal courts' practice under 
the CIPA, can presentations as well as written motions seeking 
protection for classified evidence be made ex parte?
    Mr. Kris. In Federal court practice, trial judges generally permit 
the government to present oral, as well as written ex parte 
explanations concerning the national security interests in classified 
information that is potentially subject to discovery. In military 
commissions practice, however, judges have demonstrated reluctance to 
permit such ex parte oral presentations. We believe the Levin-McCain-
Graham amendment to section 1031 of the NDAA makes clear that oral ex 
parte presentations are permitted.

    67. Senator Sessions. Mr. Kris, what practical problems arise when 
MCA judges do not allow such presentation to be made ex parte?
    Mr. Kris. Proposing substitutions and summaries of classified 
information is a cumbersome process, given the technical difficulties 
associated with developing alternatives to full disclosure that provide 
information material to the defense without disclosing sensitive 
classified information. Ex parte sessions provide an opportunity for 
trial counsel to immediately respond to questions from the military 
judge by explaining the alternatives or proposing amendments to the 
alternatives without the delay involved in relying solely on written 
submissions.

    68. Senator Sessions. Mr. Kris, the MCA allows the United States to 
seek protective orders for information that the United States has 
supplied to the defense through discovery. The text of the MCA, 
however, does not authorize such protective orders for classified or 
other sensitive information that the defendants obtains through other 
means. Has this proven to be a problem in MCA prosecutions, and if so, 
can you describe the circumstances in which it has been a problem?
    Mr. Kris. Yes, this has proven to be a problem in MCA prosecutions. 
Unfortunately, classified information may be found in open or public 
sources due to previous unauthorized disclosures. However, these 
unauthorized disclosures do not change the classification level of the 
information and do not minimize the damage to national security that 
disclosure is reasonably expected to cause. When leaked classified 
information is cited or used by counsel who have security clearances or 
otherwise have had access to classified information by virtue of their 
role as counsel, the public perceives that the leaked classified 
information has been acknowledged, thus increasing the harm to national 
security. The government is put in the untenable position of risking 
further disclosures by confirming or denying the classified 
information. We believe the Levin-McCain-Graham amendment to section 
1031 of the NDAA addresses this problem by authorizing protective 
orders in this context.

    69. Senator Sessions. Mr. Kris, I understand that the 
administration has informally suggested that the standard for discovery 
in MCA litigation should be clarified, so that discovery is available 
for information that is relevant and necessary to a legally cognizable 
and relevant defense or to sentencing issues. Can you describe the 
policy reasons for this proposal?
    Mr. Kris. We think it is important to codify and adapt current law 
and practice on this issue under the CIPA for the military commission 
context, in order to better protect classified information that is the 
subject of a discovery request by the defense. We believe the Levin-
McCain-Graham amendment to section 1031 of the NDAA addresses this 
issue appropriately. Under the amendment, defense counsel will not have 
access to classified evidence unless it materially assists the defense 
in rebutting an element of the offense, in asserting an affirmative 
defense, or in obtaining a favorable sentence, and an unclassified 
substitution or summary is inadequate. This codifies current law. See, 
e.g., United States v. Yunis, 867 F.2d 617, 624-25 (DC Cir. 1989).
                                 ______
                                 
              Questions Submitted by Senator Susan Collins
                        habeas corpus challenges
    70. Senator Collins. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
the Supreme Court's decisions have left unresolved the question whether 
Guantanamo detainees may challenge the conditions of their detention, 
such as whether they can be held in solitary confinement, when they can 
be transferred, or whether they can have contact with their relatives. 
Does the administration support allowing habeas challenges to these and 
other aspects of detention?
    Mr. Johnson. The administration believes that current law does not 
authorize Guantanamo detainees to challenge the conditions of their 
detention before an Article III court. In fact, we have to date 
prevailed in this argument in every habeas case in which it has arisen.
    Mr. Kris. The administration believes that current law does not 
authorize Guantanamo detainees to challenge the conditions of their 
detention before an Article III court. In fact, we have to date 
prevailed in this argument in every habeas case in which it has arisen.
    Admiral MacDonald. I am unaware of any judicial precedent, on 
point, for a Federal court to review the conditions of detention for 
alien unprivileged enemy belligerents. As I answered in an earlier 
question, I also believe that the laws of war, themselves, obligate the 
United States to make additional accommodations in the conditions of 
detention for unprivileged enemy belligerents as the length of 
detention extends over many years.

    71. Senator Collins. Mr. Johnson, Mr. Kris, and Admiral MacDonald, 
the typical remedy for habeas claims is the release of the individual 
being unlawfully detained. But given that many of the detainees cannot 
be released to their home countries or another country willing to take 
them, what does the administration believe to be a practical remedy in 
the event that a detainee successfully challenges his detention?
    Mr. Johnson. If a detainee is ordered released by a habeas court, 
and cannot be returned to his home country, we will work to develop 
alternative transfer or resettlement options that are lawful and that 
satisfy our security concerns. Moreover, as noted above, for detainees 
in the United States, authority to detain individuals under the 
immigration laws pending their removal, particularly where they pose a 
threat to national security, is an additional mechanism that may be 
used if necessary to ensure that detainees will not endanger our 
citizens.
    Mr. Kris. If a detainee is ordered released by a habeas court, and 
cannot be returned to his home country, we will work to develop 
alternative transfer or resettlement options that are lawful and that 
satisfy our security concerns. Moreover, as noted above, for detainees 
in the United States, authority to detain individuals under the 
immigration laws pending their removal, particularly where they pose a 
threat to national security, is an additional mechanism that may be 
used if necessary to ensure that detainees will not endanger our 
citizens.
    Admiral MacDonald. This question falls outside my area of expertise 
and is a matter now under review by the administration's Detention 
Policy Task Force.

    [Annexes A through D follow:]

                                ANNEX A

      
    
    
      

                                ANNEX B

      
      
    
    
      

                                ANNEX C


      

                                ANNEX D


    

    [Whereupon, at 12:10 p.m., the committee adjourned.]