>> i totally agree. but the last thought is i can't believe, quite frankly, given the supreme court cases, if you close guantanamo bay, move the detainees, and have a military trial like we did in world war ii that there would be a substantial difference. what i don't want to have taken away from this hearing is that if we close guantanamo bay and move the detainees within the united states, that they're going to be conferred -- they will be conferred upon them a plethora of legal rights they wouldn't have otherwise. can you all just address that.

>> there's a number of, i think, relatively modest differences between the committee's bill and the administration's proposal but as you've said, they're not fast and we do approve of and support the bill. the changing that we're recommending, we think would be ample to survive constitutional review even if the commissions were held in the united states. >> though, just the location alone is not going to change the dynamic the court would apply in a dramatic way? >> no. and we think what we're proposing will pass muster comfortably in the united states. >> senator, we're not suggesting -- and i want to emphasize that, that the full range of constitutional rights would apply. we have saidn this hearing to voluminouss in and mr. kris is right. when you look at the sgestion from the administration on a totality of the circumstances

it's similar to what the admiral has described. >> it has really coming down to that particular right. and the voluntariness in. i would align with mr. kris, bringing the sitis military commission will not matter. i think we probably can reach some common ground between what i would consider between a balancing test using voluntariness in and what the administration's position is right now. >> thank you. senator lieberman? >> thanks, mr. chairman. chairman levin asked admiral macdonald the question -- a rhetorical question of, why would you try any of these people in a military commission setting as our bill requires?

and i thought your answer, admiral macdonald, was compelling and very principled and to a certain extent, i suppose, what i really want to do is ask the question from a different perspeive of mr. johnson and mr. kris, which is why would one prefer -- why would anyone prefer to try people apprehended for violations of a law in an article 3 federal court. as you said, mr. johnson. i was disappointed with your answer and it kind of pulled me back a little bit of my feeling of appreciation toward the administration for accepting a role for the military commissions in handling these people. i mean, the fact is that from the beginning of o country, from the revolutionary war, we've used military tribunals to try war criminals or people we have apprehended, captured for violations of the law of war.

and then i think the unique circumstances of war of terrorism against the people who attacked us on 9/11 may have led us down, including the supreme court some roads that e not only to me ultimately unjust but inconsistent with the long history we've had here. we've talked before about how the military commissions are not only within the hamdan convention but the geneva convention which is the international standard for fairness of justice and handling people captured during a war. so why would you, in light of all at, say that the administration prefers to bring these people before article 3 federal courts instead of military commissions, which are really today's version of the tribunals that we've used throughout our history to deal in a just way with the prisoners of war? >> senator, please don't misinterpret my remarks. i applaudhis committee's effort and this committee's

initiative to reform the military commissions act. i think that military commissions should be a viable ready alternative for national security reasons for dealing those who violate the laws of war. and i'm glad we're having this discussion right now and i thank the committee for undertaking this and as we said, by and large, we defitely support what you're doing. the president's made that clear. when you're dealing with terrorists whose -- i'm going to say this on behalf of the administration. when you're dealing with terrorists whose one of their fundamental aims is killing innocent civilians and so it is the administration'siew that when you direct violence on innocent civilians, let's say in the continental united states, that it may be appropriate that person may be brought to justice

in a civilian public forum in the continental united states. because the act of violence that was committed against the civilians was violation of title 18 as well as the laws of war. so we believe strongly thatoth alternatives should exist. >> well, i hear you. i respectfully disagree insofar as the administration has stated today a preference for trying these people in article 3 courts. what you basically said, we're essentially -- the effect of it is to give these war criminals, people we believe are war criminals, that's why we captured them, the greater legal protections of the federal courts because they have chosen to do something that has pretty much not been done before in our history which is to attack americans, to kill people here in america as they did on 9/11,

civilian innocents, it doesn't matter and to do it outside of uniform. i think it ps usn a very odd positionqqp that we're giving te terrorists greater protections in our federal courts that we've given war criminals at any other time throughout our history even though in my opinion they are at least as brutal and inhumane, probably more brutal and inhumane than any war criminals we've apprehended over the course in the many wars that we've been involved in. so i think we end up -- yes, it may be also an act of murder to have killed people who were in the trade towers -- twin towers on 9/11 but it was an act of war. and the people who did that don'deserve the same constitutional protections in our federal courts than peoe who may have been accused of murder in new york city. i say new yorcity because the attack was there.

m over my time. this is very importa discussion, which i would look forward to continuing with respect to you and others in the administration. thank you. >> senator martinez. >> thank you, sir. to follow up on that. i think it's fascinating for us to discuss a person like khalid sheikh mohammed who didn't wear a uniform and, in fact, inflicted great harm upon civilians not only here but in other parts of the world and considers himself to be part of movement, of a political movement that we would then consider a person like that to have a preference of trying him as a criminal in a military article 3 court than a criminal. that begs another question. if we're doing article 3 trials as the chairman was suggesting, we then also are talking about closing guantanamo by the end of the year. there's no way for 220-some odd

people to be processed through some proceeding whether article 3 or military commissions in that time frame so where will they then be? i guess, they'll be here and what about those that are acquitted? where do they go and what happens to them? would you mind touching on those issues? >> you're correct. you can't prosecute some significant subset of 229 people before january. and so those that we think are prosecutable and should be detained, we'll continue to dedetain, whether it's at guantanamo or someplace else. the question what happens if thers an acquittal is an interesting question. we talk about that a lot within the administration i think that as a matter of legal authority, if you have the authority under the laws of war to detain

someone a the hamdi decision said that in 2004, that is true irrespective of what happens on the prosecution side. >> so, therefe, the prosecution becomes a moot point? >> no, i'm not saying that at all. you raised the issue of what happens there's an acquittal. >> right. >> in my judgment, as a matter of legal authority, there are -- you could get there -- there might be policy judgments one would make but as a matter of legal authority, if a review panel has determined this person is a security threat and, you know, they've lost in their habeas and we've gone through our periodic review and we've made the assessment, a person who is a security threat should not be released and a person who is not convicted for a lengthy sentence, as a matter of legal

authority, i think it's our view we would have the ability to dein tt person. whether, in fact, that happens would depend on the circumstances and the facts of the particular case but as a matter of legal authority, i think we have law of war authority pursuant to the authority congress granted us with a.u.m.f. to hold that person provided they continue to be a security threat and we have the authority in the first place. >> thank you. my time is up. but i will just conclude with a comment that i truly believe that these are not criminals. that these are people engaged in a very profound battle against this country as part of nonstate actor for some of them but then nonetheless do not really belong treated as criminals but as people that are involved in something much deeper and greater than that. >> thank you, senator martinez. senator udall? >> thank you, mr. chairman. i'll be brief. i want to thank the three

panelists for your excellent testimony. i want to acknowledge the fact that the civilian judicial system is interfacing and working with the military judicial system and i speak as a nonlawyer so i'm already getting into deep water here. it seems to me that judicial systems, living, evolving, a growing thing, if you will and we're working here to make sure that it's nurtured. another way to look at this perhaps we've got two diffent types of software systems that we're trying to intergrate and understand together. so again i want to thank the establishments for working together. anytime i preyielded to the questions to the jag officer who, senator graham, whom i thought has been very, very informative, very incisive with his questions and comments today. >> we do have two legal systems going to bear. habeas rights have been granted to guantanamo detainees.

while i don't agree with that, every detainee would wind up in federal court, the dc circuit court of appeals. the supreme court ruled habeas rights is for the detainees. we need to create uniformity to he's lights do we want habeas petitions to allow for lawsuits against our own troops? medical mpractice case was brought under the old habeas system. i think senator udall, we can stream line the habeas process. there is a role for an independent judiciary just like to conclude with this. no one should be detained in america for an indefinite period of time that doesn't go to a civilian court or a military court without an independent judicial review. i don't want people to believe that folks are in jail because somebody like dick cheney or you fill in the blank with the politici said so. it doesn't bother me at all that all of our cases will go to civilian judges in the military and the cia has to prove to a civilian court that these people

are dangerous and they're par of the enemy. once that's been done, then i think it's crazy just to arbitrarily say you've got to let them go. if our intelligence community upon a periodic review annually had believes they present a danger to this country, i think it would be crazy so you got to let them go because you don't just on an armed conflict. we need a hybrid system. we need civilian judges involved in this war 'cause it's a war without end. as the president said last week, there will never be a definable end to this war,n enemy combatant determination can be a de facto life sentence. i don't want to put people in a dark hole forever. i want them to have a way forward based on their own conduct. some of them will be able to get out of jail because they've rehabilitated themselves and some of them may, in fact, die in jail but i want it to be a process that's not arbitrary or a politician saying so but a collaborative process with an independent judiciary legitimatizing our actions.

i think that's what this country has been lacking and that's what we need to go forward. that's not soft on terrorism. that's applying american values on this war. >> thank you. setor reed? >> thank you, this has been a very thoughtful disssion and it's been a discussion about the value of trying everyone in a military tribunal, or trying people in civilian courts. and i think just for the record there is a value to trying some of these individuals in civilian courts because they are criminals and because -- they try to claim the mantle of warrior and that is feeding into their field out in the greater sheik world but, in fact, they're criminals. they've committed premeditated murder and in that situation if we can mount the case effectively in court, we should

not only do that but they should be not only convicted but also identified as criminals not as soldiers, not as warriors, et cetera. now, there are other cases where captured on the battlefield or because of practical situations the military tribunal will work. i wonder, admiral macdonald, as a uniformed officer, you have an answer to that. >> my only point would this, is that i think we need at the end of the day to have full faith and confidence that what we're creating in the military -- in this bill is a fair and just process. i am sensitive, too, that there may be situations where going to an article 3 court, going to federal court may be the right decisi -- you know, given the facts and circumstances given in a case. i just want -- i think it's absolutely vital that when we leave here at the end of the day, it's not because we believe

that what we've created as a second class legal system. >> uh-huh. >> we just -- we need to look at this. that this can stand-alone in the world and we are willing to be judged by what we're putting together today. anthat's my only point is that you ought to feel very comfortable sending anybody to these commission processes with these changes because we believe it's a fair and just system. >> the ultimate test with an american war on terrorism were subject to these procedures we would consider them to be propriate? >> yes, senator. >> thank you. thank you. i would just conclude by saying by what our bill does not. it does not purport toecide or address. one, we do not decide whether a person will be tried -- who's going to be tried is tried by an article 3 court or a military commission. we've been told there's going to be some of each for various

reasons. we do not make that decision in this bill at all. don't try to, don't purport to. secondly, we do not address the question of where a trial takes place. that is not addressed in this bill. third, what we do do is address the procedures that would apply where there are military commission trials. and it's prettybvious to me as chrman those procedures will apply regardless of where the military commissions is held. there can't be any difference in the way we write a bill on that, and i disagree with the suggestion that sehow or other it will make a difference in terms of a court ruling, supreme court or otherwise, as to whether or not a military commission proceeding is held in the united states or in guantanamo.

i just as a lawyer cannot imagine the supreme court or any other court saying well, this commission was held in one place, therefore, one rule constitutional rule applies. if it were held in another place a different constitutional rule applies. given the court has decided in hamdan, i just can't imagine there would be any difference in that decision, whether a trial court or a supreme court as to where this military commission proceeding took place. finally, on the voluntariness in issue, hopefully we can come up with some commkn language on that. but in any event we have language in the bill which incorporates the requirements of the geneva conventions. in terms of coercion, in terms of whether or not a statement can be used against a defendant. thank you all very much for your wonderful testimony here.

your very carefully thought-out testimony will be made part of the record. we'll have some additional questions for the record and we'll now move to our second panel. [inaudible conversations] >> all right. ife can all leave very quietly, those of us who are living, you're going to miss a great second panel, but please leave quietly if you are. on the secon panel we have three distinguished experiments on military commissions from outside of the government. here's our outside panel. first retired vice admiral john hutson, capped a distinguished 27-year career as a navy lawyer

by serving as the judge advocate general -- you're rear admiral. i've been corrected. [inaudible] >> your mic wasn't on. you may want everyone else to hear that or you may not want anybody else to hear your response. rear admiral john hutson capped a distinguished 27 ceo career as a navy lawyer and served as judge advocate general for the navy from 1997 tthe year 2000. he is currently dean and president of the franklin pierce law center. second, retired major general, john altenburg, completed a 28-year career as a army lawyer serving as assistant judge advocate general of the army from 1997 to 2001 and as the first appointing authority for military commissions from 2003 to 2006.

finally, daniel marcus serves as general counsel as the 9/11 commission. after spending a number of years in the white house, white house counsel's office, and the department of justic he now teaches national security law and constitutional law at the washington college of law at american university. gentlemen, we thank you -- we didn't give you much notice about this hearing. it's a very important hearing, and we greatly appreciate your attendance and the work you put in. admiral hutson, we'll start with you. >> thank you, mr. chairman. i very much appreciate this opportunity. the honor and privilege that it is, is not lost on me. i'll be brief. i've got a written statement but let me summarize it basically in a sentence that i'll amplify on

just very briefly which is that we don't ask the department of justice to fight our wars and i think we shouldn't ask the department of defense to prosecute our terrorists. i respectfully disagree with senator martinez. i think that -- i think they are criminals and they ought to be treated as such and to somehow elevate them to the status to major andre i think is inappropriate. i have two concerns. one is that -- you know, right now the u.s. military if not the most highly respected institution in the united states is among the very top. and there are a couple of reasons for this. one is that the militar carefully restricts itself to its primary mission which is to fight and win our wars. to provide the time and the space necessary for the real solutions, social, cultural,

religious and otherwise to take place. and then once that mission is limited to war-fighting, the military does that very, very well. just as the department of justice prosecutes criminals very, very well. so there is that. the other aspect for me is that the department of justice has scores of experienced prosecutors, decades of experience, lots of judges and great credibility, justifiable credibility, in this area that the department of defense simply doesn't have. you know, department of defense personnel policies rotate people every two or three years. they will never, ever get the experience that federal prosecutors have or that federal judges have.

so i think we're missing an opportunity to display the greatest judicial system on the face of the earth. to shout it from the roof tops rather than doing that, we're hiding it under a bushel and bringing out the uniformed service persons and, you know, i admire and am proud of the job that they do but it's simply not the primary responsibility of the department of defense or the united states military armed forces to perform that function and i'd rather see it where it should be in the very capable hands of the department of justice. thank you, sir. thank you, admiral, very much. general altenburg? >> thank you, chairman levin, and members of the committee. military commissions are an appropriate, long validated constitutional mechanism for law of war violations. military commissions have always adapted to both t operational needs of the particular conflict

and to the then-existing state of criminal law. this proposed statute tracks the state of criminal law in its and since the 1940s use of commissions by the united states. this is true especially in areas such as hearsay and self-incrimination and those that the supreme court has emphasized in the last 50 years. our military in the 21st century fights in a more complex manner, meaning that congress mt forthrightly acknowledge how this complexity impacts on military commissns including evidence gathered by intelligence personnel, not just conventional forces, operations and places and under circumstances that would not serve our security diplomatic posture or stabity of other nations to be made public and confronting an enemy of uncommon ruthlessness making personal security participants in the investigative trial process and espeally sensitive and appropriate consideration.

i applaud the efforts of the committee and proposing this amendment to the military commissions act. i think that there are several reasons why these people should be prosecuted at military commissions. among them the fact that we're prosecuting them for war crimes and not violations of title 18. they may have also committed violations of title 18 but we're prosecuting them for war crimes. it's a part of the commander in chief's authority to prosecute war criminals during a war and after a war. it serves as a deterrent to others. and the ucmj -- sometimes we use the word ucmj and we act like that's just court martials and military commissions are different. the ucmj includes for tribunals, court martials are the ones we're most familiar with and, therefore, oftentimes we shorthand and say ucmj when we mean courts martials but military commissions have been

around for a couple hundred years and courts of inquiry for well over hundred years and the provo courts are the least used but i think that's an important distinction that we should should all keep in mind. and in response to my colleague's comments why would we apply domestic criminal law due process or unlawful alien who abandoned civility with respect to civilian law? i would jump to two things that i would like to comment on that i think should addressed. one isquite frankly, merely a quibble because the service courts have the experience of the fact-finding role and the experience and the expertise honed over years and years that a more appropriate place for the intermediate appeal would be the existing court of military

commissions review and not the caf which i'm sure as an earlier speaker mentioned has the expertise to do the fact-finding role but it's better placed with the military appellate judges because of their experience in that regard. and i think it would be somewhat onerous to place that on them, their experiences with criminal law for the most part -- military criminal law is very similar to domestic criminal law and we're now into an area of law of war in something that's fairly arcane in dealing th these types of crimes. the other thing that i think needs to be addressed is the issue of the death penalty. it's somewhat ambiguous in the military commissions act -- and i'll just kind of state what the scenario is. if a detainee wants to plead guilty to a capital offense, he can do that. but the way the military commissions act is written, it says that he has to be fou

guilty by a jury, guilty by commissions. there's a way to wordsmith that to make sure that it's very clear in that we don't spend hours and days litigating at the military commissions procedures, you know, whether he really can do that and exactly what that means. and i'd be happy to submit that in additional comments or in response to questions to what proposed questions. it would make it very clear and i know prosecutors and defense lawyers and judges are trying to grapple with that because some people want to plead guilty to a capital offense. of course, they want to be a martyr for their cause and that's another discussion. but i think that it should be possible for them to plead guilty to a capital offense. >> thank you, mr. chairman. i appreciate the opportunity to stiftoday. i've submitted a statement for the record and i'll just say a few words in summary. i do belie there is a role for

article 3 courts in some cases involving some of the guantanamo detainees and some of the other individus who have been treated as enemy combatants at one time or another since 9/11. and i believe our article 3 courts he shown themselves able to effectively try terrorists in federal courts in the moussaoui case and the padilla case and some of the other cases. ..

the existing military commission system, which was already improved significantly by the miliry commission's act. but i do think there are some aitional steps that coul be taken, and i've outlined some of those in my testimony. >> thank you very much, mr. marcus. go into some of the details, why is it difficult to try some -- or mt some of the grawn tanmo people in article three courts. >> i think there are two main reasons and i think they were averted to in the testimony of the first panel there are some federal court rules with respect to admissibility of statement the miranda rules, for

example. the fruit of the poisonous tree doctrine -- that would make it difficult to admit some statements by detainees that are -- that should be admitted as reliable, voluntary statements under all the circumstances. i think i would associate myself with the -- with very interesting dialogue between the justice department and defense department representatives and admiral mcdonald about the issue of voluntary statements and the -- all of the circumstances test. i would align myself with mr. johnson and chris with the administration that i think we need a totality of the circumstances test, but it has to be an cored to -- anchored to voluntary necessary. i do thi the principle in our system that confessions should be admitted only if

they are voluntary is a very important constitutional and policy principle, and we ought to adhere to it. i think it may well be possible, as you and senator graham have suggested, to work out some language between the committees bil and i haven't seen the administration'sanguage, that would satisfy these coerns. the second reason i think is that -- and i'm not an expert, as my -- unlike my colleagues, on military procedures, but i take it that in military commissions, it will be easier to close proceedings, to handle classified evidence, and to handle a sensitive national security -- sensitive national security issues. obviously we don't want completely closed proceedings but i tnk there's more flexibility in the military commission system to ensure we can get the national security information that we need to

convict these guys without compromising national security. >> general aldenburg, why do we need military commissions, go it to some of the prac practicalities and i'm going to ask you, admiral, to comment on their testimony. >> senator levin, we don't need military commissions unless we want to prosecute some of these people. we can just detain the people that we captured the -- on the battlefield and have discussions and debates with international legal scholars about what does this 21st century nonstate actor paradigm mean for the right under the geneva convention to detain people you've captured until the war is over, if you've not until the war is over, you're not getting capital territory, so forth and so on. so we can detain them -- >> why is it desirable --

>> as a practical matter -- first of all, it's desirable because we can show the american people just how bad these people are, number one. and also, to the international community, can show these people how bad they are. the reason we have to have military comightses -- commissions is quite frankly , some of these people can't be tried in article three courts, there's just not the evidence to try in article three courts and my own view is alien, unprivileged belligerents, captured on the battlefield, should not be entitled to the constitutional protections that american citizens have. and i don't think we should settle for some second-rate system, but in my mind, the mca, together with what you've put together in the last few weeks,xceeds all inrnational standards. it excee anything that's being done at the hague. and one of the great failings, several years ago,

in our government, was in failing to educate the public as to what the standards are and what is at stake that the law war applies, and insad, critics have been able to define the terms of the debate and the debate has been framed in the context of domestic criminal law. and that's not what the debate should have been about. there are many issues to debate, how do you tell when the war is over, you know, what do we do about nonstate actors, how do we characterize them. there are lots of things to debate but the whole thing of people thinking there's a right to speedy trial and when do i get my lawyer, and senator, i know you've probably heard before the comment that throughout the vietnam war, the united states government's position was consistent with regd to the people that were captured and kept by the north vietnamese, and that position was you take care of them, even though you're not a signatory to the geneva conventions, we expect you to treat them with dignity and respect and when the war is over, you

will return them to us. united states government, democratic and republican, never said when do they get a lawyer, when do they get a trial, how can you hold them, this isn't fair. that was never an issue. and we never heard anybody, seven or eight years ago, talking about that, and educating our public, that that's what the standard should be, and not domestic criminal law. >> general, you've said that these procedures as we've drafted them exceed the procedures at the hague in terms of protections for people. you've also indicated that you have a couple of suggestions you've made relative to our language. other than those two suggestis, do youle this is the right direction for us to go as we've drafted it. >> reporter: yes, senator, i do. >> admiral hutson, let me put the question to you more concisely, perhaps. or precisely.

we've haditnesses not just today but long before today that point to the implausibility of some of the procedures being provided to detainees, including miranda warnings to prisoners that are captured in the course of hostilities, the impracticability of documenting the chain of custody for physical evidence collected on the battlefield, the differents posed by the need to use highly sensitive national security information, including evidence from intelligence sources whose identity cannot be made public. tell us why we can do without. how do we -- why is it not appropriate to use military commissions providing those commissions meet the standards that the supreme court has set out in hamm

deny? -- in hamden? >> mr. chairman, i'm not sure that it is inappropriate to use military commissions, i'm only suggesting i tnk the much better avenue is to use the tried and true u.s. district court system, the federal system, that has tried many, many, many terrorists, quite successfully, over the years i think fundamentally what this debat comes down to for me is that i think i've got more faith in the flexibility and adaptibility of federal courts than others perhaps have. miranda is a judge-made law. the word miranda is no place in the constitution. voluntaryiness has a place in the constitution. and i think that u.s.

distct crts are going to be fundamentally capable of dealing with the vagaries of those issues, and they are not going to, as some suggested earlier, require the soldier to give miranda rights after he breaks down the door and tolds somebody at gun point. at's not the mission,t's not a law enforcement mission. at that point, it's not an intelligence gathering mission. that's all part of t war i don't think that the federal rules of evidence or federal rules of criminal procedure are going to require that. now, if i am wrong about that, i would urge that this committee, and the judiciary committee, i suspect would have a dog in that fight, might want to look at those rules and make modest changes to the extent you feel it's necessary, rather than creating this

whole parallel system, because this whole parallel system, to the extent it complies with common article three and provides all the judicial guarantees considered to be indispensable by civilized people, then we've duplicated to a large extent the federal court system, and there's just no reason to do that. moreover, i think you le, as i mentioned earlier, a lot of expertise and experience and precedent, and you're going to bring up a lot -- you're going to bring down on the shoulders of the u.s. armed forces a lot of criticism because we've tried this twice before, and justs surely as god made little green apples, this process is going to be criticized. fairly or unfairly, it's going to be criticized by appellate lawyers, by media, by critics. the military doesn't need it, the department of justice won't have to endure

it. we will end up with a world being preoccupied not with the crimes of the terrorists, but with the perceived alleged efficiencies in our system. i'd just rather use the system that's out there and has worked so well over the years. >> i think the parallel system has existed for a long time. this is not a creation of a parallel system. senator graham? >> admiral hutson, i have a lot of respect for you, and we've had a lot of debates about this. >> thank you sir. >> but i'm going to be very blunt with you. july 12, 2006, you came before the house and the senate, and you urged us to use the ucmj as the model, and you said i was an early supporter of the concept of military commissions, and their use in the war on terror. i believed then and i still believe now, that they are historically grounded in the proper form to psecute alleged terrorists. and you submitted to the committee changes to the

ucmj that you thought were practical, but what's changed? >> well, i think -- i was an early supporter of military commissions. before we actually put flesh on the bones. and i was convinced in those days, quite frankly, that if you populated commissions with people like john aldenburg, they were going to fly, it was going to be great. as it turned out, they weren't.

. it would be the biggest mistake this country would make would be to use the criminal model but yet still hold people indefinitely without trial. i do not believe that is a choice we have to make, but if we're going to view these people as common criminals across the board, then we've lost the ability to use military law which would allow detention. do you agree, if you use the law of armed conflict you could detain someone indefinitely? >> yes i do, senator, suggest to the caveat, and justice o'connor's opinion in the hamdi case, saving the issue of forever. >> okay, now, general aldenburg, in the hamdi case, the judge said you've got to have something similar to article a five der the geneva convention. under the geneva convention, all that's required under

article five status is anin independent tribuneual, is that correct. >> yes. >> in the battlefield world, that could be one person, is that right, admiral hutn? >> i think that's right. >> the geneva convention, that's true, however, this united states has implemented it so that it requires three officers. you cannot use -- canada, for example, uses one officer. >> it's a 3-officer decision. the point i'm tryingo make is i don't want to use the article five dynamic, because admiral hutson, you said before, this is a war without end, we're going to need something new, so it goes back to senator udall's statement, we've got to come up with a hybrid system. for those people that we're not going to try or be able

. the point i'm trying to make is domestic criminal law applied to the detainee population would not allow this nation to honorably hold someone indefinitely.

do we all agree with that? >> i do. >> i do, yes, sir. >> do any of you doubt that some of the people being held at guantanamo bay if released tomorrow would go back to killing americans? >> i agree with that statement. >> admiral hutson? >> i haven't looked at their files but it's certainly possible. and i would assume that would be the case. >> i just would end with this, mr. chairman, i want to comp polyment this committe i think you've taken a very reasoned approach to military commissions, they're historically valid, the supreme court has told us how they should be formed, and what we are doing with this bill in my opinion is setting a standard beyond what international law would require if they were brought to the hague, and is something the nation could be proud of. i don't think we weakened ourselves at all. i think the extra process that we're providing these detainees will confer legitimacy to the trials that is necessary for us to win this war. and i think we're very close to producing a product the nation can be proud of, and i've eoyed working with you.

>> well, thank you very much, senator graham, for all the energy and effort and experience that you've put into this effort. it's been invaluable. senator begich. >> senatorthank you very much, and thank you mr. chairman and senator graham for your work on this and i'm kind of a tag-on here. i just have some clarification questions. admiral hutson, i'm falling on from what senator graham said, you made comments in '06 with regard to the commsion and concept of a commission with some

but that's the way life is, and i ink the dod has withstood criticism on many fronts over the decades, and i'm not too worried about that. that shouldn't be a reason why we design policy about if you're going to get criticized or not. but do you then believe that all detainees should go through the federal court system and there should be no commission of this kind or any element of this? and i say of this. of this situation that we're in now, or any future

situation in conflict? >> i was gratified when i heard jay johnson say that -- although not everybody was, but that there was an administration preference for article three courts. i would not sugst -- i'm not saying that i can't conceive of a situation in which the military commission would be appropriate. i don't see these terrorists or the alleged terrorists as being warriors or combatants. i see them as being criminals and thugs, that sort of mindlessly and heedlessly commit war crimes i'd prosecute them as criminals. >> well, let me -- what i heard there was -- and i want to make sure we're --

i'm hearing what you're saying, and that is in this situation, the commission is not necessarily the best idea, but you did not rule out that in other conflicts in the future, a commission may not b a bad idea. >> no, absolutely. >> then why not just set it up now? >> well, let's just do it. still treated as

soldiers. my friend dean hudson missed the mark when he talked about how he doesn't want to give them credit for that or somehow consider them warriors. he is right that they are criminals, they are war criminals, he is right that they should be disparaged and they are despicable and all of that, but still, based on what they have done, they have made themselves into soldiers and formidable enemy of this country. that is i i think these of litary cmissions and use of military law is not only consistent but paramount and should be used. i agree that the -- may be appropriate where you have title 18 offenses and you don't have a war crimes but it is an important tool for this government and they should use military commissions in the

context of this war. >> thank you, mr. chairman. i think senator begich's point is a critical one, whether people think mots or all of the detainees should be tried in article iii courts, we are not addressing that issue in this legislation, we are trying to reform our military commission lot so that it passes mustaw so the supreme court. we are not deciding where people should be tried, with a vat tried by commission or article iii courts, we are doing what everybody really wants us to do including you, which was to have procedures here which will pass muster. you very forthrightly acknowledge in your answer to

senar begich exactly that point, and that is what our goal is year. it can be argued elsewhere about guantanamo or here. if you're going to have articles iii trials, you clearly have to have those trials here in the united states, with the reduced 10%, 30%, 70%, whatever it is, people held in guantanamo, you cannot panel juries for article iii crimes in guantanamo. is not practical. there are many reasons why we got to reform these procedures so that they pass muster, and we are going to continue to make at effort. we thank the 3 of you for your contribution to that ef, you have different opinions that they are all valuable to us. if there are any suggested changes in the language that you have, specifically, other than

the ones you have addressed today, feel free to get those to us this week for the record, because we are going to be taking this bill to the floor next week. we also have a written statement that has been presented to the committee from professor klazer david, an article prepared by judge patricia wald for the institute of military justice, these materials will also be included in the record. if there are no additional questis, senator begich, with our thanks, we will stand adjourned. >> thank you, mr. chairman. [inaudible conversations] >> as washington and the nation

continue to focus on health care, sunday on c-span, we will talk about dealing with this line flu virus with dr. thomas friedman, director of the center for disease control, on newsmakers. and a looinside the u.s. hospital system with dr. john garrett of the virginia hospital center. as the debate over health care continues, c-span's health-care hub is the key resources. go online, follow the latest tweets, video ads and links. watch the latest events including town hall meetings and share your thoughts with your own citizens video including video from any town halls you have gone to. and there's more at c-span.org/healthcare.

>> since yesterday evening at the jfk library in boston, folks have in paying their final respects to senator ted knedy who diedate tuesday at his home in hyannis port, mass.. he will lie here in repose until 3:00 p.m. eastern or so today. a memorial service here at 7:00 p.m. eastern will be live on c-span, funeral services and burial saturday at arlington national cemetery.

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