>> obviously, we have a system that can accommodate 240 people and individuals in a safe and secure manner. and we prove that every single day in terms of the hard work people in the bureau of

corrections; isn't that correct? >> that's correct. >> i yield back. >> the gentlelady from oklahoma. >> thank you, mr. chairman. and i appreciate you gentlemen and your testimony today. about how we treat our enemy combatants especially on the battlefield. and i have a little bit of a different tack i'd like to ask you about today because this deals with a situation that's occurring in my home state in oklahoma and it deals with our american soldiers and how they are treated on the battlefield and their rights and the military court system and since both of you are with the legal system, i would just like to tell you about a situation, ask your opinion, and hopefully leave you with some information and ask you specifically if you will look into this situation for me as a member of congress.

and let me just start out -- i heard mr. forbes asking mr. johnson about the goals of the administration in relation to detainees and their rights and i think you said that the administration's goal is justice for the victim of terror and also for the u.s. citizens. in other words, there should be justice for all when we talk about our military courts. and i guess my question is, do you believe american soldiers have a constitutional right to a fair trial. >> i believe under the ucmj, american soldiers, sailors, airmen have a number of rights to a fair trial. >> thank you. >> and doesn't an american soldier have the right to defend themselves in a combat zone say if they were to run up against a member of al-qaeda, a known terrorist, do we have the right to defend themselves? >> absolutely.

>> okay. during a military trial is it permissible for a prosecutor, a government prosecutor, to withhold or fail to provide exculpatory evidence to the defense of an american soldier? >> well, first of all, as a former prosecutor myself, i hesitate to comment on what somebody did in a particular trial or a decision made in a particular prosecution and so i wouldn't want my comment to be interpreted as that. i know that as a general matter, prosecutors, the government has an obligation to disclose exculpatory evidence. >> good. that confirms that. so in your professional opinion would an american citizen, a soldier if information was withheld purposefully from the defense that's exculpatory. >> i'm not commenting on a

particular case. as a general matter prosecutors have an obligation to disclose exculpatory evidence and if they don't, there should be consequences. >> good. okay. so that gets me to a point and that is -- we had a gentleman from my home state and i'm not determining guilt or nonguilt on this situation, what i do want to make sure is that when our american soldiers who are away from our country defending our nation and on foreign soil who run across enemy combatants that are in that land that they have full rights to as american citizens because they are, of course, taking away time from their country and their life and defending our country and we need to make sure we protect them just as much as we give rights to detainees or enemy combatants and in a particular case, there has been a gentleman that is first lieutenant michael b. hannah who has gone to trial, has had a trial but there have been very deep concerns from my

congressional delegation in oklahoma and from others who believe evidence was withheld from the defense of him, and he was accused of shooting an al-qaeda member who had just killed two of his fellow soldiers in his platoon through an explosive device. and so there is some question about whether the trial was fair because not all evidence was presented in court so we have asked for the convening authority to look at the evidence and make ruling and just yesterday they made a ruling that they felt the trial was fair. so i guess what i'm asking is -- i'm going to give you this information and just ask that you would take it back because my goal is to just make sure that our american soldiers have every single right that they deserve to have a fair trial just as much as an enemy detainee. >> congresswoman, now that you mentioned the case, i am aware of the case.

the secretary of defense has received correspondence about the case. because the case is in the ucmj process, i am limited in terms of what i can do or what the secretary can do to try to influence that, nor should we try to do that. but i'm happy to look at whatever you ask me to do. >> all i'm asking you to look at the process, not the outcome. thank you. >> i thank the gentlelady. miss davis. >> thank you, mr. chairman. thank you both for being here. i wanted to go back to one of our house hearings in september of '06 when admiral mcdonald the judge advocate general for the navy discussed the issue of reciprocity. and the question was, whether the way in which the u.s. treats detainees impacts the way our service members will be treated on the battlefield, something i know you're very familiar with. and at that time he said i would be very concerned about other

nations looking in on the u.s. and making a determination that if it is good enough for the u.s., it is good enough for us and perhaps doing a lot of damage and harm internationally. now, that was a time that we, obviously, were very concerned about what was happening and the impacts. do you share his views on that? that it really does make a difference to our troops in the field how we handle this process in the u.s. and overseas? >> i here repeatedly from my military lawyer colleagues that reciprocity is important. that we are concerned about how our people would be treated if they were captured and it's important, therefore, to get it right for that reason. >> do you have a comment? >> i will say i agree. we testified a few weeks ago in the senate and he expressed the same view there which i found pervasive and he said, and i think he's right, that the

legislation that we're working on satisfies that reciprocity principle and i think it's an important one. >> uh-huh. are there any changes that the senate has made or in our discussions that would cause you any concern in those areas? or are some of those issues very differently portrayed in the outside world aside from here? have you seen that in any way? that they are being portrayed differently than the way you see them? >> well, this goes back to -- well, let me begin with this. i think that a big change that the senate bill makes to current law is a ban on the use of statements taken as a result of cruel and human and degrading treatment. the old bill, the current law, permitted that possibility.

and i think that that did more to hurt our credibility in the military commission's process than any other one thing. so whatever the house of representatives decides to do, i would hope that you would agree that we should not permit the possibility of statements taken as a result of prohuman and degrading treatment. that is certainly not what we would want our military to face and as a matter of simple american values, we shouldn't permit it in any court system governed by the united states. >> any other comments? >> i agree with that. >> okay. thank you. as we look -- if we find ourselves in a position of transferring detainees to the united states, there are many of those issues that we're going to be looking at, how we structure the proceedings, procedural rules, due process rights, of course, right to be present during adjudication.

in that transfer, is there anything that you feel might be -- might affect any of these considerations? i mean, are there some complications that arise as a result of that transfer and what should we be the most concerned about? >> i think we're both pretty confident that reform of the military commissions act of 2006, reform of military commissions to make it a robust process that more closely resembles the ucmj process is good all around. irrespective of where they are conducted. >> is there anything in the way appellate review rights, other considerations that would -- that you think would be at play

here that -- >> the -- >> we need to look at further? >> in terms of appellate rights, the administration embraces the idea in the senate bill that there ought to be a broader scope of review. i think where we differ with the senate bill is we believe that the appellate court should be an internal military court, a court of military commission review plus the dc circuit, united states court of appeals for the dc circuit. and then on to the supreme court. >> thank you. >> i thank the gentlelady. mr. rooney, i have mr. rooney. >> thank you, mr. chairman. one of the advantages of going last is that i get to hear everybody else but it's also a disadvantage because my questions are going to be all over the place so if you bear with me, i just want to touch on a few things. the chairman spoke of when the

war is over and releasing detainees and how mr. kris you would define the end of the war and it's a war on terrorism and that issue, obviously. one of the things i might ask you is when we're talking about the enemy that we have detained, somewhere is this enemy from? what country do they fight for? what uniform do they wear? what flag do they fight under? the answer to all those questions is obviously right. so those things are all violations of the laws of war or the geneva conventions as we understand them? >> they would not be entitled to be privileged -- or prisoners of war under the geneva conventions, you're absolutely right on that. >> but my question goes more to what eventually do you with them once there is -- if we can agree

that there is something that would be the end of the war? as the chairman said, that we would just -- they would just be released? is that correct? when dealing with khalid sheik mohammed or individuals that we have that have violated the geneva conventions. >> no. it's interesting in the prior discussions we were having, we talked about the distinction between detaining someone under the law of war for the duration of the hostilities and there is some question about exactly when these hostilities will cease. but separate from that is an ability to convict someone for violations of the law of war or violations of the criminal code and to hold them for the duration of their sentence which very well might go quite behind the end of hostilities. that would be a fixed sentence by a court of prosecution. >> i wanted to throw that out

there and add that element to that conversation. you know, one of the things that concerns me, and i know a lot of much time -- but one of the things that concerns me is when we're talking about the role of the commander in chief and we're talking about the lawfulness under the laws of war, the geneva conventions, the prisoner of war status, guantanamo bay which i also visited, you know, there's a lot left up to interpretation for the commander in chief. you talk about -- you talked about just a few minutes ago one of the hot button issues, obviously, are statements that are elicited from cruel or degrading, you know, punishment or interrogation. up until the president started to defining certain things, i mean, that was arguable. for some people it was more obvious than others. there was more room for argument. my question to you is, as we

move forward, the judge advocates that were here -- and some of the questions, quite frankly, that you've been asked to answer involve a lot of speculation and you haven't been able to answer them. the judge advocates haven't been able to answer them. i think that it's imperative that we do as much as we can to be as clear and detailed as possible so moving forward, we're not caught sort of in the cloud of war when it comes to how these people are prosecuted. and that's what we're all trying to do here today, but one of the things that's still kind of out there for me is when we're detainees or future prisoners or what you want to call them specifically what you call habeas or extra-constitutional rights. we talk about detainees in afghanistan and detainees wherever we're going to go in the future with regard to terror. what do you specifically foresee us doing to make sure that we're as locked in as possible when we

pick up somebody that's kind of an extension of mr. conway's question. if we pick up a bad guy on the battlefield in afghanistan who's clearly a terrorist or al-qaeda or somebody like that, what rules of criminal procedure are we going to be able to follow for that person with regard to habeas for the future? and are we going to be able to address that with what we're doing here today? >> congressman, let me try to answer this question this way. which is part of the question you asked earlier of mr. kris. there are no easy, neat, clean answers about when this is going to be over and how you treat people in the future if the so-called war ends which is one of the reasons why you seek to bring people to justice so that you can get out of that process a long prison sentence.

in terms of detainees in places like bagram, we're building a new facility. we're putting in place review procedures that i think are improved procedures from what we have now. that have been approved at the centcom level by general petraeus. and so i think we're headed in the right direction there in terms of our ability to hold these people consistent with the rule of law and consistent with what i think ought to be our american standards. >> i had about 10 other questions but my time is up. mr. chairman, thank you very much. >> thank you, mr. chairman. let me begin by thanking both of you for making efforts to try to resolve what is clearly one of the most complex legal issues we've perhaps ever faced, and i appreciate you trying to find some reasonable compromise

understanding the differences in the battlefield versus the legal arena. once again my chairman in his country lawyer style has hit on the issue directly. the way i see the issue is we have detained individuals on a relatively minimal standard under laws of war and we're justified according to supreme court in continuing custody so long as the conflict continues. we are struggling with those individuals because although we have what i would articulate as perhaps an articulatable situation, we don't have enough, at least it appears to me, to be sending these individuals to the various forums because if we did, we would have done so already. so the question becomes, once the conflict is over, what do we do? and asking a bit more directly than the chairman, do you

believe based on the supreme court course and in dicta contained within it, following the removal of troops from iraq, we going to be able to justify continued detention of individuals that were detained in the conflict in iraq after the combat troops leave? and if not, what do we do then? >> iraq and afghanistan are, obviously, different situations. as we wind down our presence in iraq, pursuant to the security agreement, that does not mean that the conflict against al-qaeda and the taliban is going to be over. we're very much in afghanistan dealing with the threat there and part of the mission of the u.s. military is capture and detention. >> all right. let's go down a few years then. let's assume that we withdraw from hassling -- afghanistan.

we believe we have these evidence that these are dangerous people but in the enough evidence to bring them to the forum. i know we're looking at these cases to determine what forums to send them. when i was a prosecutor is wondering what efforts are we making in reviewing them to acquire additional evidence so that we can afford them to these forums and so we can hold them beyond the end of the conflict whether in iraq or afghanistan? >> that effort, that collection effort, is definitely ongoing. >> and what does it consist of? >> through intelligence and military resources and avenues we constantly do that. if for no other reason than to find out not just how -- you know, authority to keep those individuals but in my view as the military lawyer here, so that we can gain information about people we haven't yet captured. so we're constantly doing that.

>> let me, if i have a little more time, with regard of the voluntarinesss in issue, are you suggesting that in the battlefield there was a door knocked down and soldiers go in and take a statement at gunpoint, are you suggesting that the voluntarinesss in standard even under those circumstances should be used as opposed to a reliability standard and if so why? >> what we're suggesting is a voluntariness standard that takes account of that circumstance in a civilian context, cops and robbers, you try to discourage the police from taking statements in those circumstances but that's the mission of the military. the military should do that and so what we're asking for and urging is a voluntariness standard that takes account of that circumstance and wouldn't necessarily -- >> and my question to you is, do you think it's realistic that

our courts are going to find that an individual giving a statement under a voluntariness standard is going to be admissible? >> you've touched on the very reason why i think we need to get it right. why we need to codify a standard to take account of that circumstance so the the judges don't misinterpret -- >> why not have a different standard of voluntariness when somebody? custody in a combined setting when you're dealing with issues on the battlefield. >> well, that is actually very close to what i think we're proposing. >> okay. thank you. i yield back. >> i thank the gentleman. mr. hunter, please. >> thank you, mr. chairman. gentlemen, thanks for being here. this is first a little bit difficult for me to be sitting here with you because, frankly, the rules of engagement and what the military lawyers do on the

ground for guys like me is make life hell, frankly you. make things very difficult. in fact, i would say some of the d.o.d. law that exists with rules of engagement and how we treat detainees actually makes us kill more people 'cause we don't want to capture them. and i've seen it happen. i've seen guys come in, get detained, couldn't hold onto them for one way or the other according to our jags and we release them and we kill them. and i don't think you understand to a certain point, especially, most jags in fact a good buddy of mine i served with fallujah who's in the fbi now. he was a jag in fallujah. we have different types. but they make it very difficult. in afghanistan, we had a jag with us 24/7, 24/7 watching the bad guys and we saw bad guys doing bad things and the jag would say, we could not do anything for one reason or another, couldn't detain them and you had a three star general

relying on an 03, 04 giving them a decision and the general could override them but strike but if they did, it would have been against what that jag said and obviously that general's career would have been in jeopardy. but anyway, we'll go onto the questions here. and i'm not an attorney so try to speak plainly to me if you don't mind. i'm at that disadvantage. in these trials and the way they are going to be, do you think we're leaning towards holding the detainees in our military briggs as opposed to federal penitentiaries with the military nature of the way that they're going to be tried? is that going into the -- and i'm not one either who thinks this administration came in and all of a sudden this stuff started.

i know in 2007 under the bush administration they were looking at camp pendleton and myanmar in san diego, does that lead to that process of thinking? >> well, congressman, let me respectfully disagree with your characterization of -- >> you really can't disagree because i've been there three times -- i think i've been there you have, frankly. so if you want to argue with that, i don't think you're going to win. >> i have two really good jags sitting right behind me. >> good. >> one of them went to the law school with the president. the other one has won condemnations for their time in iraq. >> i'm not saying you're not good lawyers. i'm sure you're very good lawyers. >> and my point is your jag lawyers are unablers.

they empower. they do not prohibit -- i am the top lawyer of the defense and i am here to work with the united states military to help them get the job done consistent with the rule of law. i am not there to stand in the way, and so i'd like to respectfully disagree with the characterization. now, having said that, i do want to address your other point. i think that where we're headed is a system where you have both systems of justice available for the interest of national security to put away the bad guys in one form or another. we need to have both court systems available for law of war violations, for federal criminal offenses. what we have right now is frankly a system that could be made better, that in the eyes of at least some falls short and we have an opportunity to fix it for purposes of promoting national security. and i hope this congress will

take up that opportunity -- >> okay. let me move on 'cause i don't know if that answered either of my questions. i'm almost out of time. when you talk about cruel, inhumane, degrading treatment of detainees, do you think we should afford our military the exact same thing? are we going to change boot camp? are we going to change school because we humiliate and degrade our marines and soldiers and airmen all the time. i mean, it's not fun sometimes being in the military, right? >> clearly -- >> we don't get too much sleep, we're sleep deprived, we don't always get food, three meals a day so we're giving detainees better treatment than i got than those jags sitting behind you if you went to ranger school -- if either one of you went to ranger schools, he's saying yes, he was humiliated and he was degraded. so are we going to make that

same standard for detainees, the same standard that we have, too? >> without a doubt, congressman, i will not disagree with you. being in the military is hard. it is difficult. you don't always get three meals a day. but this is -- please understand, sir, this is not about being nice to the bad guys. it is about american values, who we are as americans and how we would want our people treated -- >> i'm out of time. i think the reciprocity argument is absurd. this is al-qaeda and incarnate and what america does is win wars. we don't do it with bad law, you know, killing the bad guys. but thank you very much. i appreciate it. thank you, mr. chairman. >> i thank the gentleman. it appears that we've had -- we've completed our first round. before i go to the second round i know mr. mckin and some others wish to ask some questions.

what you're asking of us is to look at the senate language through your eyes and your recommendations. and as i understand it, you have five such recommendations, and i will try to condense them. the first is to prohibit the use of involuntary statements. the second is to further regulate the use of hearsay. the third is to modify the appellate process. the fourth -- the fourth is to state that they charge a material support is not a commission that may be tried -- excuse me, in an offense that may be tried in a commission and

the fifth is to establish a sunset on the use of the commission. am i correct? >> congressman, that sounds right to me. i don't know that there's any -- >> that's what you're doing? am i correct? >> i believe so except -- mr. kris can correct me. i think we in the administration are pretty satisfied on the current language on hearsay. i could be wrong about that. but i think -- >> i think our language -- >> it would help if you'd be very, very clear as to your recommendations to this committee. >> we'd be happy to do that. for the record, we'd be happy to do it. >> spell it out so we can understand it. would you do it for us? >> yes. >> within 10 days, would you do that? >> yes. >> mr. chairman, if i might defer to other members of the committee that have questions, i'd be happy to do that.

we'll just go down the line. okay. mr. bartlett? >> yes. thank you very much. you stated, mr. johnson, that we will not release prisoners to countries that torture. does that mean that we have stopped extraordinary renditions? >> as a general matter, congressman, i think it's our view that an extradition should occur to bring people to justice, not push them away from justice as a general matter. that would certainly would be my view and that's the view of the administration. >> and the extraordinary renditions that we're now approving, they are not going to countries that torture? >> i hesitate to comment on

specific military operations or actions. i would just state that general principle. >> would it not be a huge contradiction for the administration to tell us that they're not going to release prisoners to countries that torture and then continue to approve extraordinary renditions to countries that may know darn well do torture? >> again, i hesitate to comment on specific operations. i'm not sure what you have in mind. but as a general matter, that is my view and i think that's the administration's view also. >> we've been talking a lot about sensation of hostilities. we have no intention of releasing these prisoners that we have already deemed to be so bad that we couldn't release them, even if the court determines that they are innocent. why are we talking about

cessation of hostilities. doesn't that just create problems for us in the future when we have withdrawn from iraq, withdrawn from afghanistan and still hold prisoners? >> well, the question that the chairman asked of mr. kris is a good one and when does this war end? there is no easy answer to that question. at least i haven't heard one yet, from an awful lot of very bright people. and so that is the reason why we think that we have law of war detention authority but i think even the supreme court in the hamdi case said circumstances could change depending on how far out you go in this conflict and it's the reason why we think some form of a periodic review of each detainee's situation is appropriate given the nature of this war. because there may come a point in the future when that person is no longer a threat or they

are such that they could be transferred to some other country with appropriate security guarantees. >> questions asked by mr. forbes and mr. conway elised answers from you that indicated that if the courts found a detainee innocent that we knew was a really bad guy, that we weren't going to release him, that begs a couple of very interesting questions. one of them is, haven't we already adjudged him guilty by determining that he is so bad that no matter what the court does we're not going to release him? and if that is so, why do we go through a court proceeding, particularly, in a military tribunal? sir, there are millions of people in the world when you mention military tribunal, they cringe because of their association with the military tribunals. i know ours are different, sir,

but this is psychology and in this area perception is the reality and the reality is that military tribunals have little credibility around the world. i think ours is very good. i have no problem with them. but i'm not talking about the problem i have with them. i'm talking about the problem the world has with them. this just makes the point that i made, sir, in my first round of questioning. i'm not sure why we're here. i'm not sure why we bought this trouble. i try to follow my mother's counsel that you shouldn't borrow trouble. if we could move these criminals to an international court, why don't we do this. we brag this was not our way. it was a coalition. why are we burdened with this as a single nation when this was a war of a coalition? why don't we move these prisoners to an international arena and avoid all of the national stigma that we're going to get from these proceedings no matter what we do and how careful we are? >> well, congressman, i would

urge that we not think about a decision to detain a captured belligerent as a determination of guilt or innocence. i think the comment that was made earlier was that that's not -- that's not a law enforcement context when the united states military makes a determination that they should detain a belligerent on the battlefield, that's not an adjudication of guilt. that is a decision for reasons of national security and safety that that person needs to be detained so they don't return to the fight. that is very different from an adjudication of guilt or innocence. i would try to answer your question by saying that military commissions in my judgment should not be judged as in any way second class justice you. say there's that perception out

there, well, let me try to address that perception. our jags cherish the ucmj and the notions of justice and there's some jags i work with everyday who are committed to that process. >> i thank the gentleman. it appears mr. forbes? >> thank you, mr. chairman. and to mr. johnson and mr. kris, thank you both for being here. i know it's tough. i know it's long. but you keep saying you want us to get it right. we can't do it unless we ask tough questions. mr. kris you told me you wanted to talk about the administration's position. i'm going to ask you about that if i can. on some of these issues. when was the last time that you were at guantanamo bay on behalf of the administration or in your capacity? >> it was some time within the last few months, i think. >> when you were down there, you noticed the security that we had for many of the detainees because oftentimes they are

throwing feces through the door, urine through the door. we have double doors on some of the detainees. we have guards that is well trained and the professionalism here. looking on each prisoner every 3 minutes. they don't move anywhere unless they are with a naval officer. they are also shackled when they're getting interrogations, questioning or when they are having medical treatments because they could very easily grab a pen and stab it through a nurse's eye. that's what all the professional people ayatollah us when we were down there. mr. courtney raised the issue of the general prison population in the united states. is the administration even contemplating putting those prisoners with the general prison population in the united states? is that even a possibility? >> i think the answer to your question is no for a variety of reasons. >> and if the answer's know then it's meaningless -- >> well, i'm not -- >> let me ask you a follow-up question you can respond any way

you want to in the written statements but where do we have in the united states that type of security and what kind of capacity do we have there now to be able to put these prisoners? >> i think there's two different questions here. one is whether it should be a b.o.p. facility, whether it's a federal criminal civilian facility or a military base or military facility in the united states. so that's one distinction. with respect to just the b.o.p. side of it, i think if i have the numbers right, that we have about -- more than 200 terrorism-related people already in custody including 33 at the super max facility. >> but the super max facility, isn't that 95% full all the time including what the department of prisons have told us? >> that number sounds plausible. we can hold some very, very bad people -- >> let me follow up on that. you looked also at the tribunal, the facilities that we built down in guantanamo bay to be able to house these military

proceedings. you also know it's very important -- that's the only one skiffed in the united states because we have security matters that come up and we have to have a 40-second testimony between testimony and between statements and when it's released to the people watching. we were told there's not another facility in the united states that has those capabilities or are like that. do you agree with the information we were given at guantanamo bay. >> i think this is something mr. johnson could -- >> i call on mr. johnson to answer that if he could. >> the facility you referred to is first rate and absolutely. it is an expeditionary facility. it was built that way. it was built with the intention that it some day would be moved. >> you mean you're talking moving that facility to somewhere in the united states. is that even a possibility. >> if we move the detainees, we would move the facility. >> then if you did that and you only have one of those facilities, you wouldn't even entertain the possibility of transferring these individuals

across the country back to the trial proceedings because they have motions and everything else. you would have to locate those prisoners near in conjunction with that facility, isn't that true? >> ideally, we would keep the detainees who are being prosecuted in committed in military authority. >> anybody you noticed who would be in a military commission would need to be located near that sight, isn't that correct. >> that would be my optimum solution. whether it actually happens that way, i'm not sure. but that would be an efficient way to do it, yes, sir. >> the administration even entertain putting them in other parts of the country and transferring them with the security risks that might be present there to the hearings they would be held before the military tribunals and the actual proceedings that would take place there? >> ideally, as mr. kris would tell you in dealing with

civilian criminal defendants, who are prosecuted, you want to keep them close to the courtroom. >> and my time is almost up, my question, would the administration even entertain not doing that? >> that would not be -- that would not be an efficient scenario. >> thank you. mr. chairman, thank you so much for your patience. >> thank you very much. mr. connelly. >> yes, sir, in the interest of prolonging the misery of our panelists, i do want to talk again back on the forward-looking issue and that is the authorization for use of force. we had testimony from one of your colleagues last year that said in my professional opinion that it would be both constitutional and prudent to confirm the military's authority to detain, al-qaeda, taliban and associated forces. it was a mr. caddis who testified last year. he's a bush appointee i would suspect. mr. kris, your thoughts on that? >> if i understand -- excuse me, if i understand the question

correctly, i think the president believes with respect to the gitmo population -- >> again, i'm -- this question has nothing to do with gitmo. this is a forward-looking question. we've got a judge bates who has said habeas corpus applies to pakistanis taken to afghanistan. please, don't go back to gitmo. this is a forward-looking question. >> i think with respect to forward-looking to the extent that we need to have long-term law of war detention, that is something i think the president has made clear. he wants very much to work with congress on and if we need it, i think it might be something that we would consider statutory authority for. getting out ahead because right now we're focused on the near term. i don't want to go back to guantanamo. >> so are you planning to proffer that legislative fix that you believe is necessary. we want to be able to make sure the president has the authority he or she ultimately needs to

deal with this issue. have you got legislation in mind yet? >> no, i don't think we're there yet. >> just one last thing, mr. chairman, other than public opinion, in terms of -- and then we can talk about gitmo. other than public opinion, what other reasons do we have for closing that facility? will these prisoners be safer somewhere else? will they be better cared for somewhere else? will it be cheaper somewhere else? is the treatment better? is there anything other than our -- it's legitimate, mr. bartlett, is there any rational reason given that we've got trillions of dollars of pending deficits ahead of us that we would spend new money on replicating gitmo somewhere else in the united states? >> the reason to close guantanamo, sir, is not just some lofty notion of symbolism. lots of people cross-section bipartisan from john mccain, george w. bush, barack obama

have said guantanamo should be closed. why have they said that? because guantanamo is a bumper sticker for al-qaeda. >> so you're still talking about public perception. >> i'm talking about national security, sir. >> okay. >> i'm talking about this enhancing national security. >> so if we replicated gitmo, as you said we're going to move it into the united states, doesn't the bad guys still have the exact same issue? it really is just about the perception that we're dealing with and not the -- not any of the mechanics. you said earlier in your testimony, and i agree having been there myself, that this is a -- you couldn't keep these people any better than what they're going to be kept in. in fact, we move them into a federal prison they will probably have some course of action terms of lowering their standard of living moving them in a prison in the united states from where they're coming out of in gitmo? >> there are tangible national security reasons -- >> that are unrelated to --

>> this facility needs to be closed and we're determined to do that. >> so we will spend new dollars -- >> and, sir, i can tell you that for high value individuals who we determine we must detain, we will detain them in a facility as secure, if not more secure, for the safety of the american people. that i think i can give you some pretty good assurance on. >> this whole false argument that they might escape from whatever facility we keep them in is a red herring. i don't think anybody in their right minds thinks any of these people will escape. by the way, thank you, mr. chairman. i yield back. >> does anyone else wish to ask a question, mr. hunter? >> thank you, mr. chairman. i'd like to, you know, clarify one of my statements so i don't get chased down by a jag tomorrow myself. we didn't release somebody in the and shoot them. we had somebody we had to release, found them in fallujah again and they were fighting us

and we saw them again and they had been killed at that point. and also i understand that jags are unablers. the way they have to do it, they have to play around the law as well as. they have to try to make things work for us on the ground that's law that's made here by d.o.d. and it makes it difficult for everybody on the ground trying to make things work, but the jag corps itself, i think, is good but it's the law here that they have to deal with. so my question is this, if we threaten or we verbally abuse during -- and help me out here. i'm not even leading to any certain line of questioning for any particular answer. if we bust down a door and we threaten somebody, you know, shove a rifle in their face, kick them down, yell at them, threaten them verbally to get an answer out of them and they give that answer, what does that count as in this whole scheme of

things? >> again, it depends on the circumstances. what we're advocating is a voluntariness standard that's a battlefield reality. the other point i would make we can't let the tail wag the dog here. we can't let the law enforcement mission, which is an important one for national security, overcome the essential mission of the united states military. and that was part of that letter i read earlier. the military's mission is to capture and engage the enemy. that's what they do. and i don't want them to do it any way different at the point of capture than they do it now just to make mr. kris happy. >> you don't think the mca is going to change anything on the ground? it'll be the same as it is now when it comes to the actual point of engagement? >> i don't believe that the reforms in the mca that are in the senate bill or that the

administration is proposing would or should alter how the military does its job at the point of capture. that is correct. >> okay. thank you very much. thank you, mr. chairman. >> mr. rooney? >> thank you, mr. chairman. as quickly as i can, going off what mr. hunter was just saying, when you talk about voluntary versus reliability and it seemed admiral mcdonald was sort of saying that, you know, reliability with elements of voluntary was preference and you were going voluntary with elements of reliability, why is he wrong? >> well, first i respect admiral mcdonald a lot. and i respect his views on this issue. it's one he and i have discussed extensively. we think that there should be a voluntariness requirement being just that as a factor because we think that military commissions, judges, courts, what have you

are going to try to impose that any way as we have more and more of these prosecutions. as a requirement, we ought to get it right and make sure that it accounts for all the circumstances that congressman hunter is concerned about. so we are advocating a voluntariness standard but it's got some good language in there that we're happy to put forward for the record within the 10 days that i think is sufficiently flexible to take account of the battlefield and when you look at it, it's really not that far from what admiral mcdonald is saying. >> okay. i'm assuming because we're going down unchartered territory here because we're fighting a nonconventional-type enemy, a nonconventional war, we're setting new rules for what mr. hunter -- his scenario has, assuming we move forward here and let's just speculate country x, a true country, north korea, china, whoever, and we go back

to a conventional war, do these rules apply to future conflicts or do they just apply to the conflict that we're in now with kind of an enemy that's undetermined nationally or under a common flag? are we setting new rules of engagement, new laws of war for all conflicts moving forward or if we fight a conventional war, do we go back to the old system? >> well, the military commissions act and the senate bill by their terms refer to, you know, unlawful enemy combatants or unprivileged enemy belligeren belligerents. it does not define stimulus planively the laws of war. what we're advocating is a sunset provision to deal with changed circumstances. >> one last thing, and this goes with mr. conway again, you were

talking of national security, the stigma of guantanamo bay. i asked mr. holder on the judiciary committee if the stigma -- if there's a stigma with guantanamo bay, does that still hold after a trial, evidence comes out, this guy is a really bad guy, he needs to be put away for the rest of his life. everybody agrees with that. why can't guantanamo turn from a detention center to an actual prison and mr. holder at that time said, you know, the stigma was still there. he would, i think, agree with you that there may be national security is a bumper sticker for al-qaeda. what i'm saying doesn't it take leadership at the highest level from you, from mr. holder to the president to say to the world and the global economy, the stigma is wrong. we're holding these people in a first class facility with people that are doing things the best way possible giving them the utmost care with regard to their

culture and everything else and not to say that super max can't hold them. we know, you know, sure, they're more than capable. but why do we have to react to what a bumper sticker for al-qaeda might say rather than take leadership and say, this is the reality. this is the new stigma. this is the new reality. why can't we do that? >> first of all, i think we've tried that. second, i think the leadership to be exerted is to respond to the call of people from both parties, both of the last two presidents -- this one and the last one -- and say let's get it done. okay. everyone wants to close guantanamo. let's get it done. let's make the bureaucracy work and impose a deadline on doing so. that's what i think the leadership should be doing. >> well, i understand what you're saying but again, as so many of my colleagues having been there, having seen the facility, having been told how much money we've spent there and, quite frankly, still spending and still building down

there which is insane, but anyway, in this day and age, i think that's, you know, part of the problem a lot of us have that we can't sort of redefine what the reality is. thank you, mr. chairman. thank you. >> i thank the gentleman. before calling mr. mckin, let me urge our witnesses that should you have a additional materials you would like to submit to our committee, feel free to do so. but it would be very helpful if you could do it within 10 days of today. plus, the recommendations i referred to a few days ago. >> thank you very much, mr. chairman. and thank you very much for letting us continue. i know this is a very important issue to all of us and i know the chairman is going to be going to guantanamo and we'll get a firsthand view of what's going on down there.

i referred in my opening statement that my opinion changed after having had the opportunity to visit it. all i had seen from guantanamo was the pictures that we all saw a few years ago that caused apparently this problem that caused this perception that has caused all these problems. and i would like to associate myself with the questions of mr. conaway. i've got together that out of my heads i've only known him for several years and i want to keep calling him the wrong name and mr. rooney because, frankly, the comments that you made, mr. johnson, about how things are different down there and what the job that is being done down there now, there was an ad in one of our papers here on the capitol hill a couple days

ago -- an ad run by prison guards from our federal prisons asking for more help, more guards, and i met with federal prison guards a few months ago. and they told me that at times one guard is in a yard with 700, 750 prisoners and he said they could kill me at any time. i guarantee if he were in a yard with these prisoners in guantanamo, there wouldn't have to be 700. he would have been dead. these are guys that have one purpose in life and i may be generalizing there but i think most people that have had the opportunity to interrelate with them would have that same conclusion. i think you indicated that. that they're very dangerous individuals. we have down there 1,000 guards for these little over 200 prisoners and they're very careful and they still have

problems. they go on hunger strikes. there's a few leaders that they said they've separated but they still get the word back to the other prisoners. i want you to go on a hunger strike and i want to you commit suicide. i want to you kill a guard. these kinds of things and they carry out those orders. as much security as there is there, i don't think we have to worry about terrorist attacks from the outside which i think we would have to worry about anywhere that we had them in the states. and it just -- it seems to me that if we could do what mr. rooney suggested come to a new reality, have the leadership really say, look, you know, in this time of economy, this time -- we're still at war, we've got real financial problems in that country, i think that that facility -- the courthouse alone costs $12

million. you said they could move it somewhere and i think you're probably referring to inside the courtroom, the desks and those kinds of things. the wiring, the ability to do the translating, the things that mr. forbes talked about. i think would cost us tremendous amount of money to duplicate anywhere here in the country. i think there would be political opposition on a grand order. i used to be on the city council. i know what it takes to get a building permit to build a building. there would be people that would be fighting this thing. the delays would be years, not weeks or months. before a facility could be built to handle them. to do this situation. the prosecutor told us that if he could, allowed to move forward, he could wrap this up in three years. maybe he's optimistic, say, four years. i don't know.

you have a better feel for that. but to think that we could duplicate what we have there, somewhere here in the country, without the opposition that would come from it, without the -- all of the problems that would be associated with this kind of a move, let alone the security problems that are involved, i just wish we could really step back and take a real look at all of these circumstances before we move forward in a judgment. and maybe that's why the president asked for -- or the commission asked for six months more to at this. i think the reality really needs to brought to bear here. i thank you again for what you're doing. i think you did a tremendous job of telling your side of the story and carrying out what your mission is. mr. chairman, i thank you for your desire to go down there. you're a tremendous chairman for this committee and i appreciate all that you do and with that i yield back. >> thank you so much