after raising taxes and there was a substantial decline in tobacco use. after implementing smoke-free long as there was a for the decline.

shortly after taking office, president obama ordered the closure of guantanamo bay detention facility within a year. i commend the president obama at the time for ordering the closure of the detention center. president obama sending a clear message to the world that we are reestablishing the rule of law in the united states and that we as a nation will abide by our own international obligations. as the chairman of the united states helsinki commission, no other concern has been raised with the united states delegation by our colleagues in europe as often and as in earnest as the situation in

guantanamo bay. as a member of the house of representatives in 2006, i voted against the military commissions act. at the time, i stated that i believed it was not sound legislation and i thought it was susceptible to challenge in the courts. the legislation set up the flawed system of tribunals in guantanamo bay that ultimately was rejected by the supreme court. let me make this very clear. i want the united states government to bring terrorist suspects to justice quickly and effectively. we must remain vigilant against the terrorist attacks on our nation on september the 11th, 2001. but the system we use must meet fundamental and basic rule of law standards. americans have a right to expect this under the constitution and our federal courts will demand it when reviewing a conviction. we would, of course, expect other nations to use a system that provides no less protection for americans that are accused of committing crimes abroad and call upon foreign courts.

this may president obama characterize the detainees into five categories. today's hearing will focus on the first two categories. first, detainees who have violated american criminal laws and can be tried in federal courts. our article three courts. second, detainees who violate the laws of war and can be tried through military commissions. i understand that the detention policy task force under the guidance of department of justice and defense have extended its work for an additional six months in order to issue a comprehensive final report and recommendations. last week, the task force issued a preliminary report along with a protocol for the termination of guantanamo cases referred to for prosecution. this protocol lays out factors that the department of justice and defense will consider in deciding whether to try a case in an article three court or in a reformed military commission. the protocol states that there is a presumption that where feasible, preferred cases will be prosecuted in article three courts in keeping with the

traditions, principles of federal prosecution. nevertheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. i might point out that the senate did enact an amendment to the department of defense authorization bill which may not be totally consistent with the position which the administration has taken. we do have two distinguished panels of witnesses today to help us in our deliberations and i look forward to their testimony. at this point, i would recognize the republican leader on this committee, senator kyl. >> thank you, mr. chairman. i, too, thank the witnesses for being here and presenting testimony today. we're going to hear testimony of several witnesses to the extent to which military commissions should be used in the prosecution of terrorists presently detained at guantanamo. before they testify, however, i think it's important to recall that military commissions have a long history in this country.

precisely because it has widely recognized that procedures governing civilian criminal trials lack the flexibility that is frequently needed to deal appropriately with the unique circumstances presented in war. these include issues regarding the admissibility of hearsay evidence obtained on the battlefield and the protection of classified information. military commissions can provide a workable solution to these issues while still providing the accused with a fair trial. opponents of military commissions like to point out that we have successfully convicted terrorists in civilian courts, such as the so-called blind sheikh, but rather than improve the adequacy of civilian courts for terrorist prosecutions, these cases actually highlight the national security risks inherent in prosecuting terrorists as if they were common criminals. in a case of mr. raman, for example, intelligence information was compromised when the government was forced to turn over to the defense a list of unindicted co-conspirators as required in civilian

prosecutions. according to the 9/11 commission's final report, the release of that list had the unintended consequence of alerting some al qaeda members to the u.s. government's interest in them. similarly, judge mukasey, who provided over several terrorist prosecutions, has described how our national security interests were compromised in the prosecution of ramsey yousef when an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised, end of his quotation. but he goes on to say this communication link had provided enormously valuable intelligence but as a result of the public testimony, the link was immediately shut down and further intelligence information lost. end of quote. cognizant of these serious national security concerns, congress has in a bipartisan fashion repeatedly ratified its support for military commissions. indeed, just last week, as the chairman noted, the senate passed an amendment to the

national defense authorization act that once again stated that military commissions were the preferred forum for the trial of terrorists. in light of the significant national security risks associated with civilian prosecution of terrorists, and the oft repeated support of military commissions by congress, i'm deeply troubled that the obama justice department's july 20 protocol for guantanamo cases adopts a presumption that terrorism cases will be prosecuted in civilian courts. in my view, the justice department's july 20 policy puts americans at risk unnecessarily. military commissions have been used for over two centuries to bring justice to war criminals and they have done so in a way that is fair to the accused. more troubling than what we heard from the justice department on july 20, however, is what we didn't hear. president obama has issued an arbitrary deadline for closing guantanamo by january 22nd, 2010. less than six months from now. thus far, we know precious

little about how he intends to do it. i hope perhaps at this hearing which the chairman initially entitled closing guantanamo, the path forward under the rule of law, might provide an opportunity for the administration to lay out its plan. apparently, however, administration officials are not ready to talk about the plan, if one exists. i would add that the justice department has been unwilling to fulfill even the simplest requests for information. for example, i sent a letter to attorney general holder on may 29th, 2009, asking for details regarding the terrorists who are currently imprisoned in the united states. i reiterated my request during the attorney general's oversight hearing before this committee on june 17th but still have not received a response from the justice department. it is clear to even the most casual observer that the administration will either need to push back its arbitrary deadline for closing guantanamo or bring those presently detained at guantanamo to the united states. bringing the detainees to the united states could, of course, substantially curtail the range of options available to detain and prosecute suspected

terrorists. it could also mean that detainees who are not convicted will be ordered released into our country. this is understandably of concern to all americans, especially since the pentagon believes that more than 70 previously released guantanamo detainees have resurfaced on the battlefield. we therefore need to know whether the administration intends to bring guantanamo detainees into the united states before we can have an informed debate on prosecution alternatives. finally, i would note that any plan to bring detainees into the united states would likely require congressional action. it is therefore critical that the administration devise a plan and share it with the congress as soon as possible while there are still sufficient legislative days to fully consider and debate the available options by the president's self-imposed deadline. >> thank you, senator kyl. senator durbin has requested an opportunity to give an opening statement as chairman of the human rights subcommittee. without objection, senator durbin is recognized. >> thank you, mr. chairman.

i think what you just heard articulated by my colleague, senator kyl, is a point of view that's been expressed many times on the floor of the senate, and you can be summarized very simply. when it comes to terrorists, american courts can't try them and american jails can't hold them. i couldn't disagree more. any discussion of prosecuting suspected terrorists held at guantanamo should begin with an examination of the facts. for seven long years, the bush administration failed to convict any of the terrorists who planned the 9/11 terrorist attack, and for seven long years, only three individuals, three, were convicted by military commissions at guantanamo bay. in contrast, look at the record of our criminal justice system. in holding terrorists accountable. richard sable and james benjamin, two former federal prosecutors with extensive experience, published a detailed study on prosecuting terrorists in america's courts, our federal courts. here's what they concluded. from 9/11 until the end of 2007, 145 terrorists have been

convicted and sentenced for their crimes. according to justice department, in just the last five months, since january 1st, 2009, more than 30 terrorists have been successfully prosecuted or sentenced in federal courts. to argue that american courts cannot prosecute terrorists, look at the facts. we're not only done it in the past, we're doing it now. this argument that we're somehow at risk when we try these terrorists of disclosing sensitive classified information, this goes back to a case that was prosecuted involving the 1993 world trade center, where the prosecutors failed to use the classified information procedures act. according to the same individuals i mentioned earlier, the government didn't invoke cipa to prevent the disclosure of a less than unindicted co-conspirators but the government has learned from this case and in letter terrorism prosecutions like the trial of the 1998 embassy bombers, the government did use cipa to protect sensitive information.

the law is there, it can be used, terrorists can still be prosecuted. last month, the obama administration transferred ghalani for prosecution for bombing of embassies. here's what the president said. preventing this detainee from coming to our shores would prevent his trial and conviction for killing 12 americans. after over a decade, the president says, it's time to finally see justice is served. that's what we intend to do. some members of congress have a different perspective. recently a member of the house republican leadership, mr. cantor criticize the decision to grinning ghalani to trial. he said, and i quote, we have no judicial precedence for the conviction of someone like this. the truth is there are many precedents.

let me name a few. one is ramsi youssef, richard reid, the shoe bomber, and mo can't say moussai. this is the very same attack for which ghalani is being prosecuted. four men were prosecuted to life without parole in the var same court where ghalan zi being tried. the argue thamt we cannot prosecute him in that court, the argument that it's somehow unsafe to the people of new york city for him to be incarcerated while he's being tried really defies history. susan hirsch an american citizen lost her husband in kenya at the embassy bombing. she testified in the hearing for the four suspects coin victimed. she supports the decision to prosecute ghalani. she said, and i quote, i'm 'leaved we're finally moving forward. it's really, really important to

me anyone we have in custody accused of acts that led to the death of my husband and others be held accountable for what they've done. ms. hirsch supports the shutting down ofguantanamo. she believes it's safe to try ghalani in the united states. she says, quote, i trust the new york police department. listen to what she said about the critics of the administration. they're raising fear and alarm. there's a lot more to be afraid of while we have guantanamo open. i have faith in them. i have faith in the new york police department, in our court system. they have proven time and again they can rise to this challenge. some of my colleagues argue we should continue to not prosecute guantanamo detainees because no prison in america can safely hold them. remember that flap? that dust-up as to whether or not terrorists could be successfully incarcerated, securely held in the united

states? senator lindsay graham, also a military lawyer said, and i quote, the idea that we can't find a place to securely house 250-plus detainees within the united states is not rational. the record is clear. today our federal prisons hold 355 convicted terrorists. no prison has ever escaped from a super maximum security facility. clear lir ou corrections officers know how to hold terrorists. i recently visited the federal prison which used to be our super max in southern illinois. i can tell you what the guards told me. you can bring any terrorist that you want. we're holding terrorists today, we can hold them safely and securely. and the mayor of illinois said i hole hoep you'll allow us to expand this prison. we can do our job for america as we've done for so many years. so let's get to the bottom line. if we don't bring suspected terrorists here to be prosecuted

and detained we can't close guantanamo. who wants to close guantanamo? not just the president of the united states, but general colin powell, the former chairman of the joint chiefs of staff and secretary of state under president bush has called for the closing of guantanamo. as has john mccain and lindsey graham, james baker, henry kissinger and condoleezza rice. admiral mike molen and general petraeus have called for us to close guantanamo. as long as it's open, it's a recruiting tool for terrorists around the world. it's time to turn the page and acknowledge history. we have successfully prosecuted and incarcerated terrorists in the united states much more succe successfully than any military commission in guantanamo. thank you. >> let me introduce our first panel.

our first witness is david kris, sworn in as an assistant attorney general of national security on march 25, 2009. he's worked in both the public and private second forps he's served in the department of justice from 1929 do 2003 as an special deputy attorney general from july 2000 to may 2003. his work focused on national security issue ins colluding supervisoring the government's use of fisa, learepresenting th department of national security council and assisting the intelligence community. our second conditions is jeh charles johnson, general counsel for the department of defense, following non nomination and confirmation by the united states senate. in this capacity, he serves as the chief legal officer of the department of defense and legal adviser to the secretary of defense. mr. johnson's legal career has been a mixture of private practice and distinguished

public service. he began his career in public service as an assistant united states attorney in the southern division of new york where he prosecuted public corruption cases between 1989 and 1991. gentlemen, if you would please stand. do you affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? thank you. please have a seat. mr. kris? we would like to hear from you. >> thank you. mr. chairman, senator kyl and members of the committee, thank you for inviting me to testify. federal prosecution in article three courts can be an effective method of protecting national security consistent with fundamental due process and the rule of law. in the 1990s, i prosecuted a group of violent anti-government extremists. like their more modern counterparts they engaged in what now would be called law

fare and the trials were very challenging. but prosecution succeeded not only because it incarcerated these defendants, but also because it deprived them of any legitimacy for their anti-government beliefs. military commissions can help do the same for those who violate the law of war. that is not only detain them for longer than might other wise be possible under the law of war, but also brand them as ill yit war criminals. to do this effectively, however, the commissions themselves must first be reformed. the legislation now pending in congress is a tremendous step in that direction. if enacted with the changes that we suggest, it will make military commissions both fundamentally fair and effective. and as the committee knows a task force established by the president is actively reviewing each of the detainees now held

at guantanamo bay. although i cannot refer to precise number, a significant number of cases have been referred for possible prosecution. those cases will be reviewed and worked up by joint teams of officials from doj and dod, using a protocol issued jointly by doj and dod together, that we have released publicity to which senator cardin referred in his opening remarks. under the protocol, there is a presumption where feasible that referred cases will be prosecuted in federal court. but that presumption can be overcome if other dom pelling factors make it more appropriate to prosecute in the commission. there are three main gruchs factors identified many the protocol that resemble the fk tors that govern foreign selection by doj prosecutors every day, whether the choice is between federal and state court,

u.s. courts and foreign courts or civilian courts and traditional military courts-martial. perhaps the most important point about the protocol is that it avoids too many abstract bright line rules. it recognizes the existence of two prosecution fora, both effective, both legitimate, and provides that the choice between them needs to be made by professionals looking closely at the facts of each case, using flexible criteria established by policy makers. that flexibility, we submit, is the most effective way to defeat the adversary consistent with our core values. and i would be pleased to answer your questions. thank you. >> thank you very much. mr. johnson? >> thank you.

you have my prepared written statement. i would like to make consistent with that statement a few observations. i want to thank the senate for taking the initiative at reform of military commissions. various provisions to amend the military commissions act of 2006. as i said in my prepared remarks, we in the administration think that the senate has identified the issues for reform and we have worked with the senate armed services committee to further amend the law since the bill was reported out of committee on june 25. the department of justice and we in the department of defense were happy that the language was amend

amended to more closely reflect the classified information procedures act so that classified information in military prosecutions is treated in a manner similar in the way it's treated in federal civil courts. as was noted, we in the department of defense and the department of justice have agreed to a protocol for determining where cases should be prosecuted. as mr. kris noted, the operative language is that there is a presumption that where feasible cases should be prosecuted in an article three court and then there are three factors for consideration of that issue. the one thing that i can say in my experience as a public servant and former prosecutor, my prediction -- and i say this with some confidence -- is that as we go through these cases and make these assessments, in all

likelihood we're going to end up doing this on a case by case basis, looking at the evidence, making the assessments case by case with the protocol in place. i'm sure that's going to be done carefully. the review is under way of each detainee that the president mandated in his executive order. the detention policy task force is busy at work, and i just want to add to what was said before by noting that a bipartisan cross section of distinguished americans has called for the closure of the guantanamo bay detention facility. and has done so for a period of years. not just as a matter of symbolism, but as a matter of promoting our national security. we know that al qaeda needs and uses bumper sticker messages fo.

and guantanamo bay is one of those. b osama bin laden has used guantanamo bay as a recruiting tool. we know bureaucracies work best a deadline. in his second full office as president, the president set a deadline for the closing of guantanamo bay. we're set on meeting that deadline and i'm confident we'll get the job done. >> thank you. first, let messier what i say in my introduction. i commend the president for his asunsments on the closing of guantana guantanamo bay. i've represented our nation and guantanamo bay has been a sore spot and legitimately so by our friends around the world as to the manner in which gann tennessee m --

guantanamo bay has been handled. and i'm confident our article three courts can handle the prosecution of those we intend to hold criminalically responsible for their actions.c responsible for their actions.ce for their actions.cally respons for their actions.ally responsi for their actions. mr. kris, you didn't give us any numbers, but can you give us the percentages that we prosecute that we want to take to criminal responsibility, either in article three courts or in military commissions. how many of that percentage wise would you anticipate would be tried in our article three courts? and how many would you anticipate would be handled by military commissions in? >> that's a difficult question to answer, for the reasons that mr. johnson and i both articulated which is that under the protocol and under the approach that we intend to take here, we're going to evaluate these cases one at a time in a

very fact intensive way under the criteria set out in the protocol. so it's very difficult as a result of that approach to make statistical predictions about how they're going to shake out. i think the basic idea behind this protocol is that we need to look at these cases from close to, one at a time and make the best judgment. so i'm really not in a position to give you a percentage number or prediction. >> if i understand correctly, the decision to prosecute an article three court would be made by the attorney general after consultation with the secretary of defense? >> that's correct. >> if a decision is made not to prosecute in an article three court, would that also be made by the attorney general after consultation with the secretary of defense? is that also going to be made at that level? >> i think that's right, yes. >> so -- and when do you anticipate the process of evaluating that? that is evaluating whether they

should be recommended for trial in article three courts or commissions to be completed, that review? >> that's difficult. i can give you some sense of how article three works without going into too much length. we are -- currently the task force is more than halfway through its review of the 240 detainees. and they expect to finish that review by october 1. some of those then will be referred over for possible prosecution, already a significant number have been. and then we will work those as quickly as possible. some of those cases have already been investigated to some degree because they were, or are pending in military commissions. others less so. so again, i don't want to give you a precise date, but there's going to be very aggressive working up of these cases by

these joint doj and dod teams. we want to move forward quickly. we want swift and sure justice and we want to get it right. >> let me go over capacity in article three courts for one moment. we've heard that the preparation for trying terrorists cases coming out of the guantanamo bay could be time consuming for the court. it could be intense for budget support for the different participants in our criminal justice system. is there any concern about the capacity in our article three courts to handle the workload that may be presented, and is that a factor at all in making a judgment as to whether to try an individual in an article three court? the cost factor associated with a trial in the article three courts.

>> we're certainly mindful of both the security concerns and the cost concerns, and we would not want to choke the federal courts with a sudden onslaught, but i think we believe this can be handled. the courts are resilient. the martial service is capable and we think we can work this out successfully. it's going to have to be worked out on a case-by-case basis, but we have confidence in our institutions and the capacity to do this and do it well. >> mr. johnson, let me ask you about the concern the american bar association has expressed in regards to military commissions. they raise the questions on hearsay evidence, on coercive evidence, on the effective use of counsel. and even though there's been some modifications suggesting they still raise concern as to whether with military commission can, in fact, comply with the standards that the bar association believes is appropriate.

how do you address their concerns? >> i think i can answer it in two ways. the senate bill does a pretty good job of dealing with hearsay ef and authenticity issues in a way that takes account of military operations, intelligence collections operations. in term of resources, the ability to prosecute and defend these cases. one of my special concern sin t ability to prosecute and defend these cases. one of my special conceroperati. in term of resources, the ability to prosecute and defend these cases. one of my special concerns is -- i have met with the chief counsel in guantanamo bay to ask him what he needs to provide a's jags with adequate training and

resources to deal with significance of these cases. i'm ready and willing and able to help him in that task. >> would either of you, crippled with the generalization that while there are different potential concerns with both trials in article three courts and military commissions, that both can be made to work to try these particular kinds of cases? is that a generalized correct statement? >> yes, sir, absolutely. >> sounds right to me as well. >> that's my view as well. and that's why i do want to relate to a comment my colleague senator durbin made. we have had this debate, i think, enough time to know each other's lines. so he knows what i'm about to say. he establishes a straw man and knocks it down. but i'm not a straw man.

his argument is, and i quote, that, my argument is that, quote, american courts can't try them and american courts can't hold them. nobody ever said. i didn't say it. it's not -- you all don't believe that. i don't believe that. my criticism is in the change of the presumption, and that's what i want to get to here. it's not a question of can we. you have both established that we can do it in either forum. the question is should we. and there are reasons sometimes to go to one forum or the other. you indicated that will be on a case-by-case basis. my primary question is why change the presumption. is it not true, mr. kris that the presumption when feasible, the article three courts will be presumed to be the appropriate court is a departure is from our long tradition of trying these kinds of cases in military commissions for the most part?

>> in the previous administration there was a very strong preference for the use oi mr. johnson, in your written statement, you suggested by changing the definition to a standard tied to the 2001 authorization of using military force that the administration is now detaining individuals

pursuant to -- and i'm quoting -- an authorization granted by congress. is it also your view that the 2001 authorization for the use of military force provides for congressional authority for transferring individuals to the united states and detaining them on u.s. soil? or would that require further congressional authorization? your view? >> well, the -- as you know, senator, the congress and the department of defense war supmental added war requirements in advance of bringing detainees to the united states or transferring to another country. and it's certainly congress's progress fif to request that type of thing. i think the way that i would answer your question is with

regard to the current population, we believe that the authorization for the use of military force as informed by the laws of war provides the adequate legal authority for the detention of the current population. now, that is obviously being tested in the courts right now, individually, detainee by detainee. virtually every one of them has brought a habeas proceeding against the government. i believe it's the case that authority exist irrespective of where we hope. >> so extend to detention in the united states? >> yes. >> yes. >> so it couldn't be necessary to seek further authorization to congress. >> i believe that's the administration's view. >> if either of you wish to supplement that answer later, you're welcome to do so. let me ask you another question, mr. johnson. you say the detainee review task force has reviewed the transfer of 50 detainees to other countries. as the administration found

countries willing to take all of these detainees approved for transfer. how many of the other countries have expressed a willingness to take? and if you know, how many of the 50-plus detainees were already approved prior to the obama administration taking office on january 20? >> i know that -- senator, i know that a number had been approved for transfer under the process that existed when the administration came into office. transer from is a matter for our detainee affairs office in the department of defense as well as the state department. i'm sorry i don't have the exact numbers for you of countries willing to take detainees. i would add that in terms of transfers it's not just who's willing to take them. we also seek security assurances from the countries that are

willing to accept a particular detainee so they don't simply go back to the country and continue to fight. >> an important we fully appreciate. can you give us any notion -- is it most, is it some, is it a few? that we think can be transferred both because the country will take them and the appropriate arrangements can be agreed to? i assume this is a proper question for you. >> i hesitate to speculate or make predictions so that i can be proven wrong later. i think that -- as i noted in my statement, the current population is about 229. i know the number that had been transferred is knnorth of 50. it's substantially north of 50. let me add this. >> go ahead. >> the population that we began

with were people that we thought were readily available for transfer or prosecution. i wouldn't make any assumptions based on the current pace about what the end results are. >> i don't mean to put you on the spot. if either of you would loo toik supplement your answer for the record, you're certainly able to do that. >> i'm glad you're holding a hearing on an issue of this importance with these types of implications. it's critical the judiciary committee stay involved. i was glad to see a presumption in favor of using our federal courts in the administration's protocol for handling guantanamo cases for trial. i want to state for the record that disagree fundamentally with an amendment that bush administration part of an authorization legislation last week that stated military commissions should be the preferred forum for prosecutions of detainees.

in my view that has it exactly wrong. at a minimum, the presumption should be our existing civilian and military legal systems should be the proper venn grurs trying these cases as laid out in the administration's protocol. but that does not answer the next question which is when if ever should military commissions be used. i'm glad the administration supports changes to improve the procedures used in military commission trials and many of those changes are moving forward as part of defense authorization. but i remain concerned that the military process is so discredited that it may not be possible to fix it. i have yet to hear a convincing argument that other options of bringing detainees to justice and the military courts-martial system are unworkable. >> so let me ask why the government should retain military commissions as an option at all. >> a four-part answer to that,

senator feingold. it's a good question. the first was the point made earlier. military commissions do have a long tradition in our country, going back really in some form to the revolutionary war. the second is that they prohibit because they're tied to the law of war a slightly different set of offenses. law of war offenses on the one hand and traditional federal crimes on the other. the third is that there are some differences. obviously we don't yet have a final bill on the military commission side. but if the administration's positions are adopted there will be differences with respect to mir ran wamiranda warnings. and there may be different statute of the limitations requirements and rules that apply as well. and i guess finally with respect to the application of some of these procedure differences and law of war offenses you would

have military judges in charge of the trials. so those are some of the operational differences that we think may be relevant. >> i can understand some of those more than others. i don't know the mere fact that they have been done before doesn't overwhelm me. just a caution, though. i'm concerned about the suggestion that military courts will be better because it's easier to get a conviction. you didn't say that but some of the things you said may suggest that. this decision should not be outcome driven. i'm not suggesting that's what you were saying but it is a possible interpretation. if you would like to respond. >> i think your point is a good one. the factors set forth in the protocol really boil down to the strength of the interest in the forum. the identity of the victims, the location, that sort of thing. the efficiency.

then a third category, other factors, to include an ability to sort of display or convey the full misconduct of the accused or the defendant. and that, again, might vary according to the type of defense that is within the subject matter of jurisdiction of the forum. i agree with you that these need to be principled and decisions we want them to be fact intensive, case by case. but we don't want to have a system that is or appears to be unfair or wholly results oriented. so i agree with that. >> mr. johnson? >> senator, the president has reiterated that we are at war with al qaeda. military commissions as pointed out are older than george washington. and we believe that some offenses that constitute law of wars ofs should be prosecuted in the war military context, in

military commissions. by the nature of the alleged conduct offenses, conduct can violate both title 18 as well as the laws of war. and there are some offenses, for example, offenses directed at the u.s. military or offenses committed on what we would call the conventional battlefield that belong in the law of war context for prosecution. our jags believe that. our commanders believe that. i believe that and the administration believes that. so what i would urge is that we reform military commissions. we adopt a process so that we have alternatives available to promote national security. >> another aspect of this, we all know that prior versions of military commissions have been roundly criticized. both at home and abroad. again, i appreciate the efforts to make the procedures more fair. but i remain concerned about how

they will be perceived and how they will affect our broader counterterrorism efforts. let me send you a letter sent by three retired military officers. attempt attempts would perpetuate the harmful symbolism of guantanamo, squandering an opportunity to demonstrate the american system of justice. how do you respond to that aspect of it? >> i think it is very important that we have clear that the military commission system as we'we proposing to reform it would not be some kind of second-class justice system. i think it's incumbent upon us as the administration and perhaps as a government as a whole to get the message out. i think a hearing like this one is an important part of that process. i mean, we want to have a system of commissions that is and appears to be fair. and i think we are moving in that direction, and i hope that people will listen to what is going on and take a look at the rules that we're proposing and take comfort in them. >> there's been a lot of talk

lately about the application of miranda rights in the battlefield context. miranda warnings are never permitted to interfere with american military or intelligence gathering operations. is that correct? can you explain why this is really a red herring? >> it is correct. there is no new policy with respect to the administration of miranda warnings. if it continues to be done and decided on a case by case basis in actual practice, i believe the number is less than 1% of interviews are preceded by miranda warnings. they neert used by soldiers on the battlefield and they're not allowed to interfere with force protection and other critical aspects. again, it's this case by case fact intensive judgment. sometimes the use of fir randa warnings can keep open a prosecution option. that keeps us more safe, notlesnot

less. >> senator hatch? >> thank you. last week a major deadline was missed by the detainee policy task force. the failure to meet that deadline gives me some pause. i see it as an indicator that closing guantanamo inless than 180 days may be unrealistic. the publishing and interim report does nothing to disspell my concern, let alone the concerns of my constituents who write me daily to express their uneasiness over bringing detainees to the united states. now the six-month extension will now push back the dew date to january 1, 2010. that's scheduled for the issuance of reports and the deadline for closure of guantanamo were set by the

president, not my congress. i certainly have a lot of respect for the job that you gentlemen have been tasked with. and as a member of the both the senate judiciary committee and select committee on intelligence, i realize the complexcies involved in this process. but when a significant report outlining detainee policy going forward misses its deadline and cannot and will not be published until the day before the administration shutters guantanamo, you can see how it reflects poorly on the way this process has evolved. i believe this is a major reason why support is waning in not only congress but in public opinion as well. so today can both of you give me your honest assurance, or assessment of where we are in the review process? and are you confident the final report will take another six months to complete? >> senator, i'll take a crack at that.

it's important to distinguish between the detainee policy task force which will be the authority of the report to which you refer. we need to look at a whole a reviewed and how many are left to review, do you know? >> the -- i don't have the exact number, but the -- we are more than halfway through the 240 who

are there on january 22. approximately 120. and the expectation is to finish the remaining 120 for review by october. >> what are the projected breakdowns of prosecutions by article three courts and military commissions? >> as i said earlier, that's a number that's impossible to provide at this point because we haven't done all of the prostitution work-up. substantially more than 50 have been approved for transfer and a significant number have been approved for possible prosecution. beyond that, i really can't go -- >> mr. kris, you stated when feasible, the justice department will prosecute detainees in a federal criminal court for violations of war. there are specific requirements to ensure the authenticity of evidence for use in federal criminal prosecutions. one of these requirements, as you know, is chain of custody. there are many scenario where is the chain of evidence may not be documented.

for example, a combatant captured in afghanistan may have documents, a letter or other materials in his possession that may link him to a war crime or other violation. if the goal is prosecution in a criminal court, then chain of custody must be preserved. at least that's my understanding. what's your proposal to address the chain of custody so the government can introduce this evidence into article three supreme courts. >> it's an excellent question, senator. obviously chain of custody is a concern and it's a concern for authenticating evidence in any forum. to answer your question directly, i guess what i would say is the protocol in the second of the three groups of factors recognizes that choice of forum may be focused on legal processes in the other jurisdiction. as i was saying to senator feingold, there are, i think, going to be some differences in the rules that govern between

article three courts and military commissions as we're proposing them. one of them, for example, would have to do with the admissibility of hearsay evidence, which raises a similar concern. if you have a soldier on the battlefield and he's the live witness, you may not be able to pull him off the line. so there may need to be some relaxation of those rules. but considerations of the sort you're identifying are part of the protocol. and would not be dispositive, but they would a factor in the thinking. >> i'm sure a great deal of the evidence that would be introduced of detainees was obtained through intelligence purposes. in some cases the government may not be willing or able to produce the source of the evidence. further more, the evidence may be the fruit of information obtained through foreign intelligence or foreign investigations. the disclosure of these foreign relationships could severely jeopardize intelligence sharing opportunities in the future. as such, the course of the evidence is either unable or

unwilling to testify at trial. if trying these cases in federal criminal courts is the ultimate goal, how does the doj address hearsay evidence exclusions? have you arrived at conclusions on that? >> well with respect to hearsay, we have a position that is actually quite close to the senate armed services committee bill. which basically requires the direct evidence, unless it would be impractical or it would have an adverse effect on military operations. so that is a different standard than, say, applies in federal court. with respect to classified information, i think, especially with the graham-mccain amendment, which mr. johnson mentioned in his system which is quite similar to cipa, the

classified information procedures act, it is a challenge. you can have situation where is you risk compromising sources and methods. there are ways around that and cipa is the main vehicle for dealing with those kinds of issues, but in a way, i think you point out the larger question here, which is that prosecution itself, whether in a military commission or in an article three court is one way, but only one way. and not always the best way to protect national security. we're focused on protection of national security. we're tie try fog use all the lawful tools to achieve that protection including but not limited to prosecution. >> my time is up. >> thank you very much. senator durbin? >> senator kyl is right. we have this ongoing debate that continues. i would say as far as the presumption is concerned, i think the figures speak for themselves. the fact that over the seven years we had three who were tried before military commissions and 145 in article

three courts is an indication to me that there was a presumption that the most successful line of prosecution was in the article three court. there's an effort to enlarge the terrorism laws since 9/11 and has been the basis for successful prosecutions in article three courts. we have created leelt opportunities here to protect our nation. let me ask, if i can, a question or two here. there's a con sen about the image of military kbhigss. it's been expressed by several people at the highest level. the lieutenant colonel testified before the house committee of the judiciary recently. he said i proudly went to guantanamo to serve as a prosecutor, bringing to justice

detainees president george bush said were the worst of the worst, but i eventually left guantanamo, the colonel said, after concluding that i could not ethically or legally prosecute the assigned case. i became the seventh military prosecutor at guantanamo to resign because i do not ethically or legally -- i could not ethically or legally prosecute the defendant within the military commission system at guantanamo. similarly, rear admiral john hudson and brigadier general james cohen said the commission system lacks domestic and international credibility. and it's shown itself vulnerable to unlawful command influence, manipulation and political pressure. former secretary of state colin powell said we have shaken the belief that the world had in america's justice system by keeping a place like guantanamo open and creating things like military commissions. we don't need it and it's causing us far more damage than any good we can get for it. so we can repair the image of

military commissions to the point where we can say to the world with credibility that we are now operating under established standards of justice and jurisprudence? and that it is clearly a different approach than has been used in the past? >> yes. the president believes we can. the administration believes we can. obviously the president had concerns about the military commissions act, the prior system or the existing system of military commissions. the initial action there was to take five important rules changes that he could do without legislation. and those have been made. i can go over them if you want. mr. johnson knows them even better. they were important. they dealt with things like hearsay, choice of counsel and that sort of thing and the admissibility of confessions. the next step is the bill that is now pending in congress, reported out by the senate armed services committee. and we have a great deal of

agreement with that bill. there are a few areas where we have some disagreement. but if the administration gets the proposals that it is putting forward, i think the military commission system would be amply fair, and it would be a system that would not be second class. and i think eventually the public perception will catch up with the reality. >> senator, if i could, as the department of defense lawyer, the -- i think one of the problems that we've had is the american public by and large is simply unfamiliar with the concept. you can't turn on tv and watch a military commissions hour-long show like law and order or something of that nature. but i know from personal experience that our jags cherish notions of justice, the constitution, just like assistant u.s. attorneys do and many of our prosecutor s at the

military commissions were asas in their other life. our jags are highly qualified lawyers. the jags sitting behind me who has helped me in this effort pip he was at harvard. i think he got better grades. the jags all -- let me just cite you one incident. when we started talking about the rule changes, all the jags familiar with the process, prosecution and defense and said, guys, what can we do to reform military commissions? and the first thing right off the bat was, let's get rid of the possibility, codified in law for admitting statements that were taken as a result of human and degrading treatment. there was almost complete unanimity in the jag community to do that, because that possibility alone did so much to

cost military commissions in terms of credibility and perceptions about the fairness of the process. and the rules changes i'm happy to see did away with that. and the senate bill does the same thing. i think we can get there. >> let me just say, i don't question the professionalism or integrity of those who were involved. i've worked with many of them and i respect them very, very much. they were put at distinct disadvantage when commissions were made by fiat and not by the ordinary course of law. i think the court decisions also raised a question as to whether or not they are conceived properly. i think they were conceived in fair fashion. i would want to be shown in

opposition to what passed last week, this so-called preference in our sense of the senate language for going to commissions. i think the record, as senator whitehouse has said on the floor speaks for itself in terms of the department of justice. there's a pro bono story in chicago, a reward was given to people who turned them over. after six years of incarceration, he was given notice last year that our government was not going to proceed with any charges against him and he could be released at anytime. of course, he still sits at guantanamo because there's no place to release him. they're working on his release. so the notion of why people are there and where they're being held sometimes conflicts with reality. there are dangerous people who need to be tried before courts or commissions for that matter.

what do we do with those you can not be prosecuted but still pose a threat. what is their disposition. where do they end up when guantanamo is closed. >> as the president said on may 21. there's that category of people who for reasons of national security, safety of the american people, we have to continue to detain. and for that category of people, what the administration believes is that there should be some form of periodic review, whether that's every six months or 12 months, we're sorting through that now. because of the nature of the conflict and because there's not going to be a readily identifiable end to the conflict, we believe that if we prevail in a habeas late gags, we shouldn't throw away the key

and leave them there indefinitely. we're developing a system and process for that segment of the population at guantanamo that we may end up with. >> thank you. senator sessions? >> turk mr. chairman. >> having served on the armed services committee through this entire process is an unfair criticism of the military and what we've been doing. i think this idea that somehow the world is condemning our procedures for handling enemy combatants is not legitimate. i think the criticism is coming from congress. a lot of it was frankly generated during last year's campaign. so much of that occurred anybody

might think there was a constant series of abuses going on in guantanamo.@@ e got a perfectly safe, well run place at guantanamo, and somehow our own members of congress have created a perception that all wild abuses

have been occurring systematically there. i don't believe that's true or fair. with regard to trying these cases within the united states, when you try one, you find out how hard it is. in 2006, the death penalty trial of zacharias moussoui. we had this experience. it was unpleasant. it's not such an easy thing to try one of these big cases in a civilian court, in a civilian

city. it's just not. 60 of these individuals have already returned to the battlefield that have been released. senator durbin says a 19-year-old -- maybe they weren't able to try him, but presumably he was detained as an unlawful combatant, and that means he is historically and lawfully detained until the war is over. the military commissions have been so discredited. i think nothing more righteous than a jag officer motivated on an issue. they'll stand up to anybody. i've seen them shred a colonel, one of my friends one time. and i held a jag slot for two years, although i wasn't trained at charlottesville. an army reserve unit. and i have credit confidence in the fidelity of these officers.

and they even, i'm sure objecte he said, because they have extremely high standards about how these matters should be handled. but what i -- can i ask you some brief simple questions. i won't talk too long. maybe the department of justice would be first. what is the -- if there's a terrorist attack, a terrorist captured in afghanistan with bombs provable to be planned to be used against an american base is that the kind of case that we're talking about being tried in federal court? >> it's more likely that case would result in detention in a theatre detention facility. >> and where would -- what statute is violated. how is there jurisdiction in the united states to try such a case a civilian court?

>> well, as was mentioned earlier, i think, thanks to senator kyl and others in congress, there's quite a large number of federal criminal statutes that apply extra ter torly including killing americans and terrorist attacks against americans abroad. there's quite a lot of jurisdiction that's separate from the question of whether as a policy matter it would make sense. >> and the venue was where you first bring the individual. what if you bring them to guantanamo? can they be move and tried in illinois? the venue statute essentially distinguishes between -- when you don't have an other wise basis for venue because a victim or an attack in the united states, for extraterritorial activities distinguishes between situations in which the indictment is returned before the defendant arrives where district of columbia is a viable

venue, or where you don't have that, where the defendant is first brought. i think gitmo does not count because it's not under the jurisdiction of any article three court right now. not in the district. >> this can be problematic. this is a state of war. we're dropping bombs on people right now in afghanistan and iraq who threaten us and have a lawful right to do so. but the key thing we learned from the 9/11 commission is good intelligence. it's critical. it's not like a burglar or drug dealer. the critical nature of intelligence saves lives on the battlefield. and don't you think that if we expand and continue to provide more and more miranda warnings

that we are, in fact, going to diminish intelligence because anybody would not talk? they're told that up front. and when you say miranda warnings, do you tell them they're entitled to a lawyer also? >> senator, let me answer your question in two ways, if i can. first, the current version of the senate bill expressly excludes from military commissions article 31 of the ucmj which is the mir ran barnings requirement in terms of admissibility of evidence. second point i'll make is a letter that -- >> well, well, let's slow down. why is it being given then? >> well, senator, i understand that there's this perception out there that the united states military might be reading detainees or people we capture miranda warnings. and that is not true. i wrote a letter to the chairman of the house arped services committee last week on this very

issue. if i could, i would like to read you the first three sentences of the letter. >> the fbi is the one that's doing it then? the department of justice investigators, not dod? >> as mr. chris made clear, the fbi in a very, very few cases, in order to not foreclose the avenue of prosecution has done that, but the united states military is not reading miranda warnings to people we capture. that is not our -- >> well, isn't it a danger? i'll ask mr. kris about it. but isn't it a danger if the presumption is that those cases will be tried in civilian court? that the evidence or the confessions could be suppressed if they weren't given miranda warning. >> well, mr. kris can answer as to federal prosecution. military commissions will not be a requirement. >> to echo what i sard earlier, of the thousands of interviews conducted by the fbi in afghanistan, miranda warnings

have been given in less than 1% of the cases. and this is a practice of giving miranda in a very small number of cases like this -- >> my time is running -- but if you're going to try them in civilian courts, aren't we now in a situation where more miranda warnings must be given if we're going to proceed wisely? >> to proceed wisely, you need to approach these threat s thes national security problems one at a time and figure out what is the and it may vary from case to case. sometimes you need a hammer. sometimes a screw driver. you use whatever tool is right for the particular situation. if you give miranda warnings in a case, it keeps the option of criminal prosecution in article 3 court open. there may be other ways. there are exceptions to miranda for public safety under the quarrels case from the supreme court. it's not as if you always need to give miranda. if you do it, can keep the option open. there may be costs to doing so.

that balance has to be struck one case at a time by the professionals who have the ground truth. >> my time is up, but i would just say that's not a very clear answer, i don't think. >> thank you. senator whitehouse. >> thank you, chairman, and thank you for this hearing. just to continue on senator sessions' point on mirandizing, i think you've said that you look at these matters case by case and you make a very specific fact intensive determination based on the particular circumstances of each case, correct? >> that's essentially right. i think that's the way it should be done anyway. >> that makes sense, doesn't it? >> i think so. >> are there not, indeed, cases in which mirandizing a detainee might actually be part of an optimal interrogation strategy for that particular detainee? >> well, it might be, and that would be something that i as a mere lawyer would want to defer to the interrogation experts.

>> but certainly since congress is an interrogation expert, it would be a mistake for us to foreclose your ability to apply miranda warnings where the case by case in fact intensive determination suggested that it was a good idea? >> i think that's the absolutely critical point. we have a range of different remedies and tools we can use, and i think we are at our best, at our most effective and strongest when we have all of the options available to us and we don't have artificial rules sort of adopted that rule out certain techniques and tools in certain categories of cases. >> as i recall, one of the most significant interrogations that has been done in terms of productivity was the interrogation of abu jondahl and the 302s from that investigation, i believe, are still being used in cases to this day. and that was accomplished after miranda warnings, was it not?

>> i think that's correct. i think more generally, depending on the circumstances, a very, very good interrogator can often get tremendously valuable information to -- depending on what he knows about the detainee and language and cultural issues and so it's a very complicated business. but the goal again is to keep all the options on the table. and i should say one other thing i guess that may not be obvious. to the extent that we don't have a miranda requirement in a military commission but we do have, let's say, a voluntary test, i'm not suggesting that we would start prophylactically giving miranda warnings across the base. but that doesn't preclude the admission of the statement and the prosecution in a military commission. indeed it may be helpful there as well as in article 3 court. >> and i share senator sessions high opinion of the jag corps, indeed for those of white house were distressed and dismayed by the -- what i consider to be

shabby and second rate work that came out of the office of legal counsel in support of the torture program. it was the jags from every single one of the military services who stood up and pushed back and said this is wrong. we know this material. this is wrong. indeed, so did the state department lawyers. i believe the only organization of government that did not push back was the cia and their lawyers have their own consciouses to hold to account for that. but, clearly, the jag officers, in some cases at considerable pertoil their personal careers, did the right thing. so i think that they are a very good measure of whether or not the military commissions are working, and i think the fact that over and over and over again career prosecutors resigned rather than pursue prosecutions under the military commissions as they previously existed is a sign that something really was wrong with those military commissions that it has not just been invented by

members of congress and certainly colin powell has never been a member of congress and he is a person who, i think, america has confidence in on national security matters, and he says we've shaken the belief america had in the world's justice system by keeping a place like guantanamo open. and he obviously meant as it was then run, and i wish you back in trying to repair it. his view is we don't need it and it's causing us far more damage than any good we get for it. and i think it would be important to make sure you stay out of the chatter strips in terms of doing this right because our credibility has already been burned once in this effort. could i ask you how many terrorists have, to date, been convicted before military commission since 9/11? >> three. >> three. >> and -- >> in seven years. that's not a great track record. >> that's not a great track

record. we're determined to have a more efficient system. >> and the information that i had when i spoke on the senate floor with respect to the preference is that the number of people associated with terrorism who have been convicted and are now serving lengthy federal prison sentences numbers around 350 or so. is that -- >> that sounds certainly -- >> at least close to the number. >> i think there are more than 200 persons in the custody of the bureau of prisons with the terrorism nexus of one sort or another. >> my information is there are 355 inmates in federal prison who have been successfully charged, product, convicted and are serving lengthy sentences as a result of their history or connection with international or domestic terrorism. the domestic terrorism may be the 200 and the others are international terrorism.