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[silence] [silen] [silence] >> and the scene here outside the john f. kennedy presidential

library in boston. the public viewi of the jfk library as senator kennedy lying in repose is now closed.

>> as the debate over healthcare continues, c-span's healthcare hub is a key resource. go online, follow the latest tweets, video ads and links. watch the latest events including town hall meetings and share your thoughts on the issue with your own citizen video. including deo from any town halls you've gone to. and there's more. at c-span.org/healthcare. >> in just a moment, we'll show you a hearing examining proposed chans by the obama administr@tion for the use of military commissions in the treatment of detainees. members of the house arm services committee hear from officials with the defense department and justice department. first, conversation with the capitol hill reporter the issue. >> voluntary rogen, why --

>> this would be the third iterations of the military commissions process as eats begun by the bush administration so many years ago. the first version was ruled unconstitutional in the 2006 hamdan case. congress then established the military commissions act of 2006 which reformed the commissions but psident obama said when he assumed office that these commissions were not up to th standards that he thought were fair and just and representative of american values so he pledged to reform them further. that's what they're doing now and the bulk of the work is taking place in the context of this year's defense authorization bill. >> what are some of the proposed changes they'd like to make and why? >> the things that are in the bill right now are changes to how detainees woulde able to defend themselves in the case that they were to came to trial under to commissions they would be able to change the rules related to coerced testimony, testimony that was gained through maybe harsh

inteogations. also whether or not the detainee has the right to choose his attorney or his legal representation. also, whether or not hearsay or third-party evidence could be admitted. so these are some pretty good changes that seek to addre basic rights that the president and some in congress believe that detainees are entitled to. >> can we quickly review the purpose of the military commissions and how they might apply to the detainees who are being held at guantanamo bay? >> sure. so the military commissions could apply to many but n all of the detainees that have been picked up in the global war on terror. these are battlefield operations, mostly in afghanistan, sometimes in iraq since 2001. the bottom line is that hundreds of these detainees have been held without any real legal processes to determine whether or not they're guilty of the crimes they've been detained for and this process has been going on for years and years. right now there are 230 detainees left in guantanamo. the administration has said that they will refer my of these to military commissions, some could be tried in federal civilian

courts. the details of h that exactly will be worked out is not contained in this process and really not clear at this point. >> let's look at the litical landape of this overhaul. at wants what? >> the president wants to reform detainee policy. he wants to start from the drawing board and what could be a long battle between around the world. senator levin is making sure that the detainee rights could be met such that these trials could be sustained and really hold the force of law. republics in the senate have a somewhat concern. they want to make sure that these detainees are not granted too many rights. that they're not granted what they would consider to be constitutional rights that should be reserved for americans. some of those rights including due process rights might be interpreted to apply that if these detaies were then acquitted they might be able to be released and this is a concern of many republicans on capitol hill. >> your stories have indicated that this might end up being a

part of a broader defense authorizatn bill. where is that bill in the legislative process and what's the timetable for getting it done this fall? >> so the bill has been passed by both the house and the senate. they're separate versions. the commission language is in the senate version. this will be resolved in conference. it's important to note that when this bill is passedhich will be in september, probably, it has to be done before the act 1st start of the new fiscal year it will not address many of the remaining detainee sues, namely who will get tried, when will they get tried and where will they get tried? those are the real big issues that remain for both the congress and the administration to grapple with well into the autumn. >> josh roguin of congressional quarterly, we thank you for your time. >> thank you. >> the committee will come to order. today's hearing will continue the constructive conversation that we began like with the top

military attorneys of the services on reforming the military commissions act of 2006. i look forward to hearing the perspectives of today's distinguished witnesses on what amendments are needed to ensure that we finally end up with a system that can withstand judicial scrutiny and ensure that convictions stick. we certainly welcome our witnesses' thoughts on what legislative changes are most neceary and how the existing law can be improved. in addition to military commissions reform today's hearing addresses other key detainee policy issues such as the closure of the detention facilities at guantanamo bay, cuba, and the law of war dention. we initially had hoped that a critical issues would have been released earlier this week as required by the president's executive orders from the beginning of the year. instead, the interagency task force that was established to produce such a report received a

six-month extension and issued a preliminary report. the preliminary report reiterates the proposed changes to the military system and begins to describe the process and criteria that the attorney general will use to determine whether t prosecute a detainee in federal criminal court or in a military tribunal. it does not, however, make recommendations on the details of guantanamo's closure or on the process for continuing to detain enemy combatas or belligerents who continental be prosecuted in any of our courts. as a detainee in that task force and the separate interagency review team that is evaluating all the files of the guantanamo detainees finalize their work in the coming months, i'm confident they will recommend policies to keep america safe and to conform to american values. nevertheless, i want to offer a

few words of advice from a former country prosecutor. although, i continue to believe that the closure of the detention facilities of guantanamo will keep and help restore our country's reputation and moral standing around the globe, i'm concerned that time is running out for meeting the president's deadline. with a little more than five months to go the lack of details on how guantanamo should be closed, where detainees will be transferred, what to protect the communities. the costs associated with the closure decision and the range of related considerations is frankly disturbing. a detailed plan should be proposed as soon as possible. to maintain congressional suppt for the closure decision this forthcoming plan should safeguard america and be able to be implemented in the little time that's left. with regard to detainees who cannot be prosecuted but also cannot be allowed t return to the battlefield, the administration should, one, clarify the president's

authority to detain these individuals regardless of where they are held and state whether legislation is needed to augment his authority to detain. two, propose a process to replace the administrative review boards in guantanamo and in afghanistan with something that's more independent and viewed as legitimate. and lastly, third, indicat wha factors will be considered to determine when an end to hostilities h been achieved and, thus, continued detention is not continued justified under the supreme court's hamdi decision in the laws of war. before i turn to the gentheman from california, let them mention that today's witnesses are the honorable jeh charles johnson who's the general counsel for the department of defee and the honorable david kri success is assistant

attorney general of department of justice and i turn to mr. mckean. >> thank you, mr. chairman. i thank you for holding this hearing on this important topic. the administration's detainee policy and it's plan for refoing the military let them begin by welcoming our witnesses, theh o honorableh$] johnson, general counsel with the department of defense and the honorable david kris assistant attorney general department of justice. gentlemen, good morning. thank you for being here.+o on october 22nd, 2009, the president stood before the american people and announced that he would uphold his political promise to close gitmo within a year. and suspend all militar commissions pending a review by the administration. i do not want to make this a potical issue. i think if senator mccain would have been elected probably would have done the same thing.

let them say that at the outset. additionally, the president announced the creation of a detainee task force that would review america's current terrorist detention policies and practices and recommended a path forward within six months. . chairman, many in congress were skeptical of this approach. it seemed unwise to have a policy to close gitmo without a plan. we immediately pointed to the danger of establishing a definite state tolose gitmo without first having identified an alternative location to detain these dangerous terrorists. policy vacuum would be filled b÷ unelected judges who are not accountable to the american people. my only concern was military personnel serving in iraq and afghanistan could be vulnerable because of a lack of specific guidance from the commander in chief. i had the opportunity monday with'iñ three of my colleagues

go to gitmo and it was quite an education, and i have a solid view of wt i think should be done there now. and probably different from what i would have thought a week ago. as we were flying back from gitmo, we received notice that the ainistration would not meet the president's self-iosed deadline for meeting the president's new detention policy.zkñ this delay is disturbing on many levels and deserves the attention of the amecan people. one hand, i commend the president for the,e delay. on the other hand, it puts the trials and the things that we're working on down there in suspension that i think cause some real problems so we're kind of between a rock and a hard place on this. earlier this year i joined with many in congress to support legislation which would have

required the president to notify a state governor and legislature 60 days prior to the transfer or release of gitmo detainee into their state. number two, obtain a consent of the state governor and legislature to the transfer- or release and three, certify that the transfer or release of a gitmo detainee would not adversely affect the national security of the united states or residents of the united states. similar language was adopted by this committee in the house mdaa. in other words, congress has made a bipartisan statement that cannot fund any policy until it receives a plan. given the six-month extension for the detainee policy task force and the president's self-imposed deadline to close gitmo by january 2010, i'm concerned congress will be handed a predetermined outcome and this would be an unacceptable outcome. given the vacuum of information surrounding the administration's detainee policy, today's

testimony takes on even greater importance. let them briefly lay out my views on the issues i expect our witnesses should cover today. mr. chairman, a comehensive detention policy must include a strengthened authority to detain and a preventivevgá detention framework. a plan for detaining high value detainees captured outside of iraq and afghanistan where they will not have habeas corpus review. a plan that ensures federal courts do not release detainees from gitmo into the united states. and a clear framework that does not for prosecuting detainees in federalj criminal cous but-v prosecutes violations of the law in military commissions.0n a commission system that protects sensitive sources and methodand is tailored for the exigencies of the battlefield. and finally, a plan that ensures that detainees would be

transferred or released from u.s. custody do not return to the battlefield and threaten our forces or citizens. it's the issue of transfer and releasthat gives me pause. when i visited gitmo on monday, one of our briefers showed us is pictur of a former detainee that was released because he was compliant and seemed to no longer pose a threat. the picture showed him holding a child. it turned out we were wrong. he later blew himself up and killed 25 people in baghdad. we've been wrong according to d.i.a.14% of the time. i fear we're getting it wrong in aq and afghanistan, too.hñ just this week the "new york times" reported that detainees releas

risk of releasing detainees into iraq, afghanistan and especially the united states. i look forward to your testimony and i hope that the discussion we have today willivepg this congress and the american people a better understanding of the president's detainee policy. thank you. and i yield back. >> iertainly thank the gentleman. we now will hear from our witnesses. w look forward to your testimony. mrjohnson, we recognize you first.%# you want to punch that button and you might have to get real close1y to the microphone -- ge real close to it 'cause it's not as sensitive as you might think. >> can you hear me now? >> yes. >> thank you, mr. chairman. congressman mckeon and members of this committee. you have my prepared advanced statement. i apologize for the lateness of getting that to you. in the interest of time -- >> let the interrupt.3+w without objection, the

statements of the two witnesses will be entered in toto into the record. >> in the interest of time, i'll just read abbreviated version. on january 22nd, 2009, as it was pointed out, president obama signed executive orders, which established two interagency task forces. one to review the appropriate disposition of the detainees currently held at guantanamo bay and another to review detention policy generally. these task forces consist of officials from the department was justice, defense, state and homeland security and from our u.s. military and intelligence community. over the past six months, these task forces have worked diligently to assemble necessary information for a comprehensive reew of our detention policy and the status of detainees held at guantanamo bay. i'm pleased to appear today

along with david kris with the department of justice to report on the progress the government has made in a few key areas especially military commissions reform. let them begin with some general observations about the progress. 78 have been detned at guantana. approximately 550 of those have been returned to their home countries or resettled in others. at the time this new administration took office on january 20th, 2009, we held approximately 240 tainees at guannamo bay. the detainee review task force has reviewed and submitted recommendations o more than half of those. so far the detainee review task force has approved the transfer of 50 detainees of other countries consistent with security and treatment considerations and a number of others have been referred to a doj/dod prosecution tm for

prosecution either in an article 3 federal court or by a military commission. additional reviews are ongoing and the process we believe is on track. remain committed to closing the guantanamo bay detention facility. within the one-year time frame ordered by the president. a bipartisan cross-section of present and former senior officials of our government and senior military leaders have called for the closure of the detention facility at guantanamo bay to enhance our national security. and this administration is determined to do that. the one other thing i'd like to add is we talk a lot about closing the guantanamo bay detention facility. and as some of you on this commtee know who visited there, the military personnel at that facility are truly professional. and so our discussions about

closing that facility should in no way reflect upon what i believe is the first rate dedication and professionalism of that guard force. thank you. >> i certainly thank the gentleman. mr. kris? >> thank you, mr. chairman. representative mckeon and members of the committee, thank you for inviting me here. this is my first appearance before this committee. i'm from the department of justice normally appear before the judiciary or intelligence committees. and so i thought i would just begin by way of introduction to explain the work that i do and how it relates to that of the committee, particularly, with respt to military commissions. i lead the justice department -- >> you're going to have to get just a bit closer, mr. kris, please. >> there we go. i lead the justice department's national security division, which is the organizational unit that combines all of doj's major national secity functions and personnel.

and our celtral mison is to protect national security using all lawful methods consistent with civil liberties and the rule of law including but not limited to prosecutions in article 3 courts and in military commissions. in the previous adnistration, national security division assembled a team of expernced federal psecutors drawn from across the country it off assist dod's office of military commissions and litigate cases at gitmo. that assistance will continue. the man who led that team for nsd, who's 15-year career doj prosecutor is now my deputy and a former membe of the team has since been recalled to active duty and is the chief prosecutor in omc. as the president has explained, when prosecution is feasible and otherwise appropriate, we will try terrorists in federal court.

i prosecuted a group of violent extremists in the 1990s. like their more modern counterparts, they enengaged in what wld now be called law fair and the trials were very challenging but the prosecution succeeded not onl because it incarcerated the defendants, some of them for a very long time but also because it deprived them of any shred of legitimacy in their antigovernment beliefs. military commissions can help do the sameor those who violate the laws of war. it's not only detain them for longer than might otherwi be possible under the laws of war but also brand them as idlegitimate war criminals. to do this effectively, however, the commissions themselves must first be reformed. and the legislation now pending in the congress is a tremendous step in that direction.

and as you know from my written testimon that the president supports it. although i can refer here precise numbers as mr. johnson said a significant number of cases have been referred for possible prosecution by joint teams of officials from doj and dod. that review is governed by a protocol that we have relead publicly and i think it would be worth just explaining the three essential principlethat are embodied ithat protocol. the first is as the president stated in his speech at the national archives, we need to use all elements of our national power to defeat our adversaries an that is including but not limited to prosecution in both article 3 courts and in military commissions. second, artiale 3 courts which have unquestioned legitimacy are

also effective in protecting national security and military commissions a we propose to reform them which have unquestioned effectiveness are also fair and legitimate. now, i suspect there are many people in this room or perhaps elwhere who might agree only with the first part of the sentence that i just stated. and there will be others who agree only with the second part, but we think both parts are right and that leads really to the third and final principle. the choice between the two available prosecutorial fora need to be made by professiona based on a close and careful review of the facts of each case using criteria established by policymakers and these are reflected in the protocol. we cannot afford consistent with the first two principles i've discussed to adopt abstract rus that artificially constrained and limit our options.

that would make us less effective than we otherwise would be in fighting terrorism. thank you. >> thank the gentleman. it seems to me there are two pole stars in this whole issue before us. the first is that a conviction, whether it be by a tribunal gr a federal court meet judicial scrutiny and that those convictions stick. and that they be upheld. the second pole star is the necessity of keeping american citizens safe. whatever comes to pass this

must -- these two pole stars must be kept in mind. i won't take a great deal of time but i do wish to ask about the one category that seems to be the most troubling and mr. johnson, i'll call up on you to give us your best legal opinion. there are some in custody, in guantanamo today, that could not be tried in a federal court. and even with relaxed hearsay evidence could not be tried in a tribunal, but we know full well

by other evidence including their own statements that they are highly dangerous and should they be turned loose attempt to take american lives as well as lives of our allies. what do you propose to do with that group of inherently dangerous inmates at guantanamo? if you can't try themn either tribunal but you know full well what they will do if turned loose? >> mr. chairman, thank you for that question. the ability and the authority of our united states military to capture and detain the enemy is as old as the army itself.

it's a basic concept inherent in what the u.s. military does. capture and detain. and as recently as 2004, the supreme courtn the hamdi decision reiterated reported that inherent within the authorization granted by congress in 2001 to go to war was the ability to detain those who are captured. now, this president and this administration in march revised the definition of our detention authority to more closely align detention authority with the authorization that congress passed in 2001, the aumf, the authorization for the use of military force. as informed by the laws of war, we believe that that definition, which we're now using in the

courts with respect to guantanamo is the appropriate and sufficient legal authority to detain people who you've referred to, mr.chairman, as those who are threats to the american people, threats to our national security but for whom we do not choose to prosecute. >> in other words, they could held as long athe war continues? >> what the president said in his national archives speech is that for that category of people, if we have such people at the end of this review process, there should be clear, defined legal standards and there should be a periodic review so that if we prevail in a habeas case and we don't prosecute them, we're not just throwing away the key, there is a periodic review that ought to be in place to do a form of threat assessment. >> but how long do you keep

them? till they get old and gray and pass away or how long can you legally keep them under your test, under our legal test? >> under traditional concepts, as you pointed out, you keep them till the end of the war. >> but there's no one in an insurgency or a guerilla warfare to run up the white flag and sit down and sign a peace treaty. so what then? >> that is absolutely correct. we're not going to see a peace treaty signed on a battleship, which is why we believe that some form of periodic review -- i don't know whether that's every couple of months, every year or so is appropriate to do a threat assessment of that particular detainee. and that part of the work of this task force is to develop that form of periodic review. >> as the gentleman from california pointed out, there

has been one from afghanistan that was reengaged in the conflict. and i have in front of me an unclassified documentation of others that have been repatriotiated and have reengaged in onplace or the other. how do we -- how do we assure the american people that's not going to happen? >> what i can assure the american people is that when i and my colleagues at the department of defense go through this review process and look at threat assessments, look at the classified and the unclassified evidence that we have about each detainee, the thing that weighs most on my mind certainly is, is this a person who is going to

return to the fight? and to me that is the most important factor. evaluating that consistent with the law, consistent with the rule of law, so it's -- it is the thing that motivates us one way or the other, frankly. we're all veryognizant of those statistics. >> since january the 20th of this year, to your knowledge, have any of those that have been released become involved in reengagement? >> sitting here right now, i don't think i could give you that information. sorry. >> has some been released since january the 20th of this year? >> certainly some have been transferred to other countries. mr. bin mohammed, for example,

was sent back to the u.k., i believe. >> do you understand my concern? >> i certainly do. it's my concern as well. >> mr. mckeon? thank you, mr. chairman. the administration has expressed a preference for trying the detainees in article 3 courts. do you share that same preference? >> ithat for me, congressman? >> both of you. >> mr. kris and i have worked out a protocol f determining when a case should be prosecuted in article 3 versus military commissions. i think the documents public and basically what the protocol says is that there is a presumptionhat where feasible, referred cases will be prosecuted in an article 3 court in keeping with traditional principles of federal prosecution. nonetheless, where other

compelling factors make it more appropriate to prosecute a case in a reformed mitary commission, it may be prosecuted there. and then the document goes through three sets of factors that are kind of traditional factors prosecutors look at to termine whether a cae that is prosecutable should be prosecuted in one form or another. i suspect that'll be a fact-intense case by case review, sir. >> one of the concerns i have in looking at that is it seems like you go through a preliminary judgment then. do you think that that would prejudice a case? >> the document itself -- i was concerne about that very issue when we negotiated the document. and i would not want some lying prosecutor or the media to think that we pre-judged a case because we've referre it to one form or another and that,

therefore, you must indict that case and so at the end of the document, it refers to the independence of authorities that however the protocol works, it's still up to the u.s. attorney or the chief prosecutor in the military commission to exercise their own independent judgment in makghe determination that a case can and should be precuted. you can't, for example, eliminate gran juries that are going to make their own decisions in these cases, nor should we. >> is there a concern that by bpging them -- i guess, if you tried them under article 3 you would bring them to the united states, try them in a federal court? >> i would assume so, yes, sir. >> is there any concern that they -- because that would happen then they pick up additional constitutional rights that some feel they should not

have? >> mr. kris could speak to that better. he's in this what of -- he'sn charge of that process. we have the rights that we enj in federal criminal prosecutions reflected in the constitution in the rules of federal criminal procedure and i think doj has had a pretty good track record in cases where we've prosecuted alleged terrorists. >> i would just add sort of two points, i gus, congressman. with respect to the way the protocol is going to work, the first point is that the referrals are made to joint teams. dod prosecutors and doj prosecors who are going to work together on these cases. >> when we met with t fourf that went to guantanamo monday, we had an opportunity to meet with the lead prosecutor. his preference was that all -- all of the trials be done by the mitary commission.

>> okay. i mean, that is really -- that's not the administration's position that we make a bright line determination sitting here today that all of the cases be prosecuted tre but rather that they be worked up and evaluated in a case by case, fact-intensive way looking carefully at all the elements of the case and then make a decision about which is the appropriate for but we do that working together the way jay and i have worked together on the protocol. and the second, i guess, point to make about it is that these forum selection choices are not alien to government officials. they're similar to choices that haveo be made all the time, whether it be between a federal and a state court, between a u.s. court and a foreign court, between a federal court and a ucmj proceeding. >> this situation is kind of unique, though, with the terrorist situation. >> absolutely. >> and the problems we've had leading up to this. >> you are absolutely correct.

>> are you concerned at all that dividing up into two systems and the preference that going to one or the other might buttress the view that military commissions are second class-type courts some >> it's a very good point. first, i don't mean to minimize the challenges associated with this. it is a unique situation. we are working hard, jeh and i and people in our shops to do this right. it's difficult, challenging, consequential. we think we ca do it. we're set up to do it. i think it's vitally important on the last point you made to understand we are working very, very hard with the congress now -- we're actively discussing amendments to the military commissions act, with the senate counterpart of this committee -- >> you're working with the congress. who in the congress are you working with? >> well, the senateris services committee as you know have reported out senator

levin's bill. >> well, they passed a bill last night and i have it here that they say it's the sense of congress that the preferred forum for the trial of alian unprivileged enemy belligerents subject of this chapter to provisions of law and war made. trial by military commission under this chapter. >> i'm aware of that. i appreciate that's the sense of that committee and a possible sense of the congress. what i meant was that just to respond to the second class justice point. i mean, we are investing and the congress is investing huge amount of energy and effort to reform military commissions act in a variety of ways as you know. and we think with those reforms, the military commission system would not be a second class justice system. >> no, i don't think it is. what my question is, do we think the perception would be that it is because of this pre-judging and moving some to one trial and

some to another? let them -- let them -- >> we don't want that. we don't think that. we don't to prejudge and we want -- >> but there has -- by definition, there will have to be some judgment made if you decidehat one goes here and one goes there. >> that's absolutely right. >> and then -- and we really can't control the perception of that process once the media or other people get hold of it. we can't control how the perception will be. >> well, it's certainly true that i d't make any claim to be able to control the media. but mr. johnson -- >> probably nobody in is room does. >> but we're here to tell you and i think to tell people w are listening to this that it is not the case that military commissions as we're proposing to reform them will be second class. >> congressman, if i could jay add to something. >> sure. >> captain john murphy is a career professional. he's a prosecutor, the chief prosecutor you referred to a

moment ago. >> right. >> he spent 17 years as an assistant u.s.attorney. like many of the military officers i encnunter, i would expect him to be bullish and optimistic and pud of his mission. so it doesn't surprise me that he would tell you that he thinks we should handle all these cases in military cmissions and he thinks he can do so. >> he's not alone in that -- we had a hearing last week where we had the jags here from eh of the services and i think they also were of the same opinion. so, mr. chairman, i have other questions but i think i may have used up my time. we can come back. >> i'm sure we'll have a second round. i'm trying to sit in your shoes to make a determination as to

which forum in which to try a detainee. my judgment would be your decision would be based upon what type of evidence in particular what type of hearsay evidence could or could not be offered in each of the two tribunals. any federal court before a jury, there are certain hearsay rules that are quite strict. in a tribunal my understanding is that fair certain affidavits, certain statements that would violate a court hearsay rule

would be admissible and would cause your recommendation to be in a tribunal as opposed to a federal cour now, you did determine that a detainee by the name of galani should be tried in a federal court, and he was transferred to the sthern district of new york f prosecution in the federal system. what ftorsent into determining that if you may say so in our forum today? >> well, let them say what i can say, sorry, jeh, wch is galani, the man who's been transferred is a bit of a unique case because he was already under indictment for the east africa embassy bombings in the sohern district of new york where others who had been indicted with him had already

been tried so i ink s appropriate to look at that case as a bit of a unique -- >> that is a bit different in the circumstances; is that correct? >> yeah, it's a bit of a unique case given the fact that he was already -- >> oka thank you. mr. ortiz? >> thank you, mr. chairman. and i have a question for whoever can answer this question from both of you. what percentage, if any, of the current detainees population in guantanamo are not accused of being associated with al-eda on the taliban? they have not fought against the united states or coalition forces in afghanistan, iraq. do we have a number that are still there but have not been accused of alining themsels with the taliban or any of the terrorist groups? >> congressman ortiz, i don't

think i can give you exact numbers. but what i can say about the current population at guantanamo is tha the overwhelmin majority of them were captured in what we would consider the conventional battlefield circumstances in afghanistan. so i hope that answers your questions. i can't give you answer for allegiance and sort. >> they were picked up because of their association -- >> the majority were captured in conventional battlefield circumstances where our military was in afghanistan in pursuant of the authorization of this congress in 2001 so engage the taliban and al-qaeda forces. >> so have any of people that

iist mention have any of them been tried in the courts? >> we've had three convictions thus as far in military commissions. many of us, obviously, believe that we ought to be able to move more efficiently in those cases but so far there have been three convictions. >> but you don't the number it could be 5, it could be 50, it could be 10 who are still detained under those circumstances? >> who are not part of al-qaeda or the taliban? >> right. >> i suspect that the overwhelming majority are aligned with those combatant forces. i don't have exact numbers for yo >> congssman, if i could just add one -- >> sure. >> i'm not suref this will be responsive to your question. almost all of the 240 detainees whare at gitmo as of january 20th have filed habeas corpus

petitions with the united states district court and it is through the habeas corpus process that their detainability under the law of war has been tested subject to judicial review by independent article 3 judges. that dermition analytically is distinct from a secondary question which the word "accused" in your question brings to mind is how many of those have also been possibly subjected to prosecuti for not just being:fv an unprivileged belligerent or enemy combatant under the laws of war but also being accused of crimes or war crimes. that's a smaller subset but the larger population are having their detention tested through habeas corpus. >> i just have one more question, mr. chairman. mr. johnson, you stated before the senate arms services committee that it was the decision of thedministration that if a detainee was acquitted

of alleged imes, the administration may still have the authority to;1z detain that individual under loss of the war. i mean, if they ha been tried and have been found that they were not guilty, this is somethig that i myself cannot understand and maybe the american people don't uerstand either. maybe you can elaborate a little bit on that. >> it's my view as a lawyer, as a lawyer for the defense department and the view of others that as a matter of legal as circumstances or policy or judgmentut as a matter of legal authority, if there is proper law or detention of authority for a particular individual, that is true irrespective of what happens in any eventual prosecution. so in your question, if the individual is acquitted, that would be irrelevant to law of war detention facility. whether or not we ever actually did that as a matter of policy

or judgment is to me an entirely different question depending upon the circumstances. what happens in that particular case and so forth. i would point out that in one of the three convictions the individual received a life sentence. the other two received sentences and they've been transferred. >> the reason i asked this question is going back to mr. mckeon's question about the individual who was turned loose. he goes back and he kills 25 people. i'm just wondering if all these people who believe they have done nothing wrong, that they become so angry and so indoctrinated when they're there, when they turn loose they come back on us. mr. chairman, i know my time is up but i yield back. thank you. >> i thank the gentleman. we have, it appears, five votes,

one 15-mine and four 5-minute votes. we will do our best to squeeze two questioners in before we go. mr. bartlett a mr. taylor. mr. bartlett? >> thank you very much. i am bybu a number of years the oldest member of this committee. i remember when franklin delano roosevelt defeated herbert hoover. i lived through the great depression and you can't know howy5h"eeplyqmr grateful i am is really pr depression-era kid could have an4n0ueáuk to work and achieve and one day serve in this congress. i say that because i want you to understand the context in which i make these statement]foá)h @&% my question.étñ -- my questions. are there not or could there not

be established world courts in which these prisoners could be tried?pem >> i'm sorry. could you rept that, sir. >> are there not ortb could thee not be established3s world cour in which these prisoners could be tried? >> i would not rule out the possibility, sir. others have called for a national security form of court. i can imagine circumstances under which it is plausible and appropriate to prosecute suspected terrorists in an international-type forum. 're trying to dea with the current population right now. >> i understand. i understand. >> and we've got a bill that  we think is a pretty good bill for a lot of reasons.

there are areas where we woul invite this body to consider amendments. but in theory, i could imagi circumstances where that might be appropriate, thank you. >> thank you. inany thingshat we do there's an inherent tension between national security and our international image. and the perceptions of millions around the world about who we are and what we do. when i mention military tribunals to my constituents, they have the inherent initial sponse that i had when i first ard the word that we were going to do this. and that is a banana republic, a trial at midnight and execution at dawn. when you were children, i'm sure your mother told you what my mother told me, anthat is you shouldn't borrow trouble.

i regret that we are where we are today facing the necessity of deciding how we try these criminals in either one of these two courts. i would have wished we could have avoided that's a difficult matter that we wouldn't be here today. i wish we could have avoided this by deciding at the very beginning they should have been tried in international courts.é no matter what we do, we run the risk of incurring considerable ill-will around the world. thank you very much for your attention to this and i hope you can help guide us with the least damage. thank you very much. >> i certainly thank the gentleman. mr. taylor and then we will break for the votes. mr. taylor? >> mr. chairman, i'm going to yield to one of our resident jag officers, mr. murphy.

>> thank you, mr. chairman. i appreciate it. mr. johnson, i want to first thank you to your service to your country. we appreciate it. there's been a lot of conversations and discussions in this committee in the congress about our service men and women issuing miranda warnings to terrorists captured on the battlefield and frankly to hear some members of congress tell it, you would think that every one of our service members have been turned into police officers who are forced to worry about reading a gyterrorist's rights rather than completing his mission and keeping their fellow soldiers safe. we all agree, we all agree, that the job of our nation's military is to fight and win wars. not law forcement nor evidence-collection. and i'm glad that you're here today testifying in front of us 'cause i'm hoping you could set the record straight on this issue once and for all. i know we spoke with general

petraeus and he's comfortable with what his soldiers are doing in iraq and afghanistan. i have a couple of questions, one, how often are suspected terrorists captured on the battlefield and immediately read the miranda warnings and do these warningsver occur on the actual battlefield itself? if you can answer that, i would appreciate it. >> congressman, thank you for that question. and thank you als for your service to the congress. the congress breeds some really great jag officers. >> thank you. >> in response to that queion d concern, i sent a letter to the chairman addressing this issue. ani'll just read the first two paragraphs of the letter. i write to correct a serious misimpression that has arisen in recent weeks that the united states military may be providing miranda warnings to terror suspects in afghanistan. this is completely inaccurate. the record should be clear the essential mission of our nation's military in times of armed conflict is to capture or engage the enemy.

it is not evidence collection or law enforcement. members of the u.s. military do not provide miranda warnings to those they capture. lethem go on to say in instances where the government chooses to go down the road of prosecution of a suspected terrorist, that too is a mission to enhance national security to bring to justice suspected terrorists. that is part of ensuring national security. one is not an alternative to the other. >> thanks. thank you, sir. >> well, thank you, gelemen. and, mr. chairman, i know we have -- we have votes so i'll yield back the remainder of my time. >> for your information, that

letter was entered into the record during the recent record on the resolution of inquiry that we took up this past week. if anyone on the committee wishes a copy of it now, we will make sure the staff gs it to you. >> mr. chairman, i'd like -- mr. chairman -- >> i'll make it easy. we'll make sure everybody on the committee gets a copy of that. we will now recess until the end of the votes and, gentlemen, we shall return. thank you. [inaudible conversations]

>> the hearing will resume fore each members the letter dated jy 21 addressed to me from the general counsel of the department of defense and from the office of the attorney general. . aiken? >> thank you, mr. chairman. i'm not a lawyer and some of you have been getting into some fine points here but perhaps an engineer's perspective may be the way some americans are looking this whole situation. i just want to review generally the facts. that is in january the president made a decision to close gitmo. i assume that's right; is that true? ..

>> so then my question becomes -- it seems like getting more toward the bottom line. first of all, does the administration plan to release detainees into the u.s.? either a yes or no or maybe or i don't know. a fairly short answer. are we going to release these detainees into the u.s.? >> no. >> does the administration plan to transfer detainees into the u.s.? >> what we plan to do, consistent with the national security interest and the safety of the american people, is close guantanamo, move them to another facility consistent with all of those interests. >> yeah, but that still didn't really answer the question.

are we going to transfer the detainees to the u.s.? >> we are considering the possibility of a number of alternative locations. some may be transferred to other countries. some will be transferred to department of justice custody for eventual prosecution, and some will be transferred to anotr facility. where that facility is i could not tell you at this moment. >> so it's not absolutely clear, but it is quite possible that some of the detainees could be transferred to the continental united states? >> it is possible that, consistent with the safety of the american people and our national security interest, we will move them to other location in the united states. that is possible. >> okay. and would they be brought here if we were going to do a trial here? >> yes. >> and that would be maybe one of the conditions that would bring them here, especially if there would be a civil trial? >> well, it has already been the case that some detainees have

been transferred to the united states for criminal prosecution >> okay. now another piece of the equation seems to be that we could increase the barrier in terms of making it harder to figure out some other country to send them to if we become more picky about the some other country foreign rights -- i mean human rights kind of practices, is that correct? >> we do not transferetainees or anybody else for that matter to a country that we believe will torture them. >> is there any movement upon some of the different groups? since the president made the decision we are going to close guantanamo bay, six months has lapsed. i guess pple have been studying this whole deal. i assume that is what you have been doing for the last --

>> spent a lot of time studying this. correct, sir. >> and in the process of that study is there any recommendati that we raise the bar in terms ofhere we could send these prisoners, if they were going to go to a foreign country in terms of saying that maybe they don't treat prisoners and mainlenough for don't give enough food or whatever it happens to be. is there anything we are going to do which i going to make it harder for us? >> well, another consideration in the equation, sir, is assuring ourselves that the country to which we send a detainee will provide adequate security conditions so that they are not just released into the general population if, we think that detainee is a security thre. so even in a circumstance where

the country says, yeah, i'd love to have them bac we are not going to do that unless we are satisfied that there are going to provide adequate security conditions for accepting them back. that is part of the equation. it is not just the consideration of are you going to torture that person. >> there are two sides to the equation. you just answered the other half. there may be people that would not be able to detain them and give them the proper security. the other question is, are we going to limit the number of countries we could send them to by increasing the standards in terms -- in another sense in terms of their way that they handle prisoners? >> i know what the current standard is, sir. that is what we are applying. >> but you are not advocating that we are going to change that current andard. >> i don't know of any other standard that we would consider utilizing at the moment, sir. >> thank you, mr. chairman. >> thank the gentleman. dr. snyder. >> thank you, mr. chairman.

thank you all for being here. we very much value your opinion on these issues and soany others. when you all were discussing somewhat earlier the issue of forums, which forums to you used, it just coincidentally in today's paper there was as story about the pace story of mohammed. the young man fro tennessee that came to little rock and shot the two soldiers. private william long and private clinton. they were in uniform on duty outside a federal records depot. they were targeted -- using his words making press statements that because they were part of our war in afghanistan. he has actually traveled to yemen. it is not clear his background. but he is going to be arraigned, not in a military commission, not in a federal court, and

circuit court on capital murder charges and other felonies. so it brings home the complexity of these issues. we certainly potentially have other folks that will fall under the jurisdiction of u.s. authorities other than from iraq and afghanistan including some people in our own country. i want to ask specifically -- and ask this question today. you didn't know what the answer was. if a detainee in guantanamo today were to kill another detainee, what body of law would govern? and what would happen? assume there would be criminal charges brought. one human being killing another human being. what body of law would determine? >> i mean, i think that

especially after the decision, gitmo is within the special territorial and maritime jurisdiction of the net states. i should check to make sure i give you an authoritative answer. i do think that there would be federal jurisdiction in an article three court over a crime committed ere. >> wh@t i think is interesting about your answer. whene had the jag the other day -- very nice guys. very professional guys. they did not know. what confuses me about that. we have had guantanamo there for several years now. we hear stories. is and that they have been hit. there is an opportunity to bring felony charges, and i would think nvictions. in evidence trail right there within the confines. i am curious why we have not pursued any charges against detainee's if they actually committed what we think 45 maybe i am wrong. maybe that has all been petty

cakes down there that is not the impression i got. >> in fairness to our jag's you ask a very good question. >> they said that very same thing. >> we had the added benefit of advance notice. i agree with the assessment. >> the reason i reacted to your answer. you thought it would be, which tells me there have been no prosecutions for actions committed byetainees while on guantanamo during their time. my only point is if you have got somebody you're trying to lock up somewhere or deal with in a definitive way and you don't ve evidence for exactly what they did, a harder case to prove whether it was in afghanistan or iraq or the united states wherenever it was. then they actually do something that you can potentially convict and lock them up for 20 years. i would think there would have been things that occurred that,

yes, we can convict this person on this charge. >> i wonder if it is because people are afraid to actually bring some kind of arge that it might said it would fall under this. do you have any idea? >> as i sit here now i can't tell you for certain that there have not been prosecutions. i know that there are a numbe of disciplinary like msures that are taken for misbehavior or misconduct or so forth. >> it may be this is a very well-r facility and people don't have the opportunity to do some really bad things. if you have any additional information about that i would be interested. my last question i think you touched on. mentioned mr. akins questions. i assume people come up to the united states or have were potentially could for medical

reasons. guantanamo may not have the kind -- you know, if you need a center -- i'm sorry. time is up apparently. >> thank the gentleman. >> thank you. let me thank you for being here for all of your service. you are good guys. forgive me for havg to talk. we only have five minutes. i was with the gup that went down to it guantanamo on monday. we did meet with your chief prosecutor, mr. johnson, who is under your jurisdiction? >> the office of general counsel has supervisory authority. >> you are familiar with mr. murphy and his confidence? at ticket he is the best that we have to be in that in that chief prosecutor position? >> he is an experienced professional prosecutor. >> i want to narrow in on the 9/11 defendants. we talked about detainees. as to the 9/11 defendants who

are detainees undergog this prosecution. been referral. that is being prosecuted or was being prosecuted. the chief prosecutor said his goal was to get justice for the victims of terror and for the citizens of the united states. is that a fair and just go? >> that is of fair and just goal for the united states government. yes, sir. >> is that the goal of this administration? >> yes, sir. >> if that is the case and that is the standard should standd be changed simply bse someone has a perception that standard is wrong? >> i don't believe so. >> in that particular case i want to get to the 9/11 attacks. are you aware of the number of pleadings and motions that have already been resolved in that one proceeding alone? >> i know that in that case and in several other of the pendi cases we have as many as,

perhaps, 100 pretrial motions th have been resolved. >> in that particular case -- mr. chairman, i ask that this submitted as part ofhe record. listings 56 motions. >> without objecti. >> mr. murphy told us the executive order president didn't just talk about the review as you mentioned earlier but actually stated the proceedings for the military tribunals. is that correct? >> yes, sir. >> and on that the chief prosecor told us that is now necessitating that he go in and ask for a continuance on ptember 11th, which he said is far from certain that he will be granted. are you familiar with the fact that the is contacted do that in that proceeding? >> the continuances have, in fa, been granted. >> and are you familiar with the fact that he has to ask for one on september 11th because he can't go forward with this trial

now with this to be no? >> it is currently stayed. >> and he also bn tolds that there is a very good chance that the judge said she has already asked for continuances, as you mentioned, may not grant the contuance and if the judge does not he has said that he will have to dismiss the charges against the defendants because he can't move forward based on this executive order. you familiar with that? >> i agree that continuances are up to the discretion of the trial judge. >> would you also agree that if he cannot get that it continues to cannot move forward with the commission and would have to dismiss those charges? >> yes. >> and if he has to dismiss the charges why in the world with the administration put him in a position to risk dismissing the charges against the 9/11 defendants? >> well, even though the case has been suspended those particular individuals, and i hesita commenting on a

particular case, but it is the fact that this particular individuals remaining detainees at guantanamo. irrespective of what happens in the casthey are subject to law of war detention. >> mr. johnson, why in the world are we having these proceedings if we are going to detain them. it doesn't matter what the outcome. >> because in certain contexts people who violate the laws of war or violate federal criminal laws should be brought to justice. >> indeed. is it your opinion, your personal opinion that the individuals, the defendas of the 9/11 attacks violated axe of war or were they violations of criminal law? >> i cannot comment on a particular case. i don't think it would be prudent for me to do that. >> mr. chris, can you say whether or not in your personal opinion that the acts that took

place on 9/11 were violations of war or were they wise of criminal law? >> i'm not going to testify on my personal opinion. it is fair to say they were both. >> mr. kris, you're not prepared to give us your personal opinion? amount of time. i want to preppy. we have been asking all of our witnesses their personal opinions. my time is out. >> i just want to make clear. i am testifyg as an administration witness. i kn some of the military officials to testify in their personal capacity, but i will say that i think that 9/11 attacks are both violations of law of war and criminal law of the united states. >> thank you for that. >> mr. kris, you understand the difference between a case being dismissed with prejudice or dismissed without prejudice? you understand the difference? >> i do.

>> if it is dismissed without prejudice it may be refiled. am i correct? >> yes. >> if it is dismissed with prejudice that person may not be tried under theame charge. is that correct? >> that would normally be true, yes. >> mr. chair? >> yes. >> will you yield. >> yes. >> based on that line of questioning i would like to put into record that the chief prosecutor will agree there might be the possibility that he could refile this. it could take another 18 months just to get where they are right now because of all these proceedingbecause they would have to start from scratch. also it could be that the speedy trial laws would actually prohibit them from bringing a case again. all of that is up in the air. i yield back. >> i think thank the glteman. my question as these particular cases where they dismissed without prejudice or with prejudice? >> i mean, i don't know what the judges will do.

i hope that theyill. >> have they already been dismissed? >> under military commission procedure when a case is withdrawn as a few have been in the past, they are withdrawn without prejudice. >> is that part of the rules and regulations under whichhe commission operates? >> yes, sir. >> i might just make three quick points that may help on this. maybe not. the first is thathe protocol considers effiency, which would embrace, i think, prior litigation in getting a choice. the second is that at think the president has made clear be are not going to go forward with the military commissions act proceeding until the necessary reforms had been made to the military commission system in any event. in third the pending legislation, i think, as it stands today has a conforming amendment approach that allows with theossibilityof continuing the cases that are pending, even after the

amendments have been enacted into law. >> ms. sanchez. >> thank you, mr. chairman. i have consistently supported the use of military commissions in the briefcases. i was one of the first ones to introducin 2005 the military commission belt. nonetheless, i vot against the nca in 2006 because i had concerns i am glad that in looking over your review but you have actually gone to some of those concerns. i want to thank you. however, i asurprised you didn't include a revision of the definition of unlawful and a combatant, which i think currently is any person who has engaged in hostilities or who has purposely and materially supported hostilities against the u.s. or its co belligerent. i think that the intent of military commissions is to police the battlefield.

and i believe that military commissions are intended to enable. i believe that there should be clear boundaries for the use of these special wartime conditions to prevent them from a more general use in the normal law enforcement cases. cases involving noncombatants' should be dposed of through article three courts. i believe this would be accomplished by restricting the jurisdiction of military commissions and the definition of lawful in the combatants to persons who actually engaged in armed hostility or attempts, conspire, or aid and abet the same. this definition draws the line re strictly about those who participate in acts of violence under the well-defined traditional heading the principal. and for example some of the examples i might use is that under the nca the personal jurisdiction of the military is

limitd to unlawful enemy combatants. defined categories broadly include persons who are captured off of the battlefield. monetary contributions to terrorist organizations, for example. so my question to you is, have you given thought on whetherou would define -- how y would define the personal jurisdiction of military commissions? if so, how? and how would you change the definition of on lawful enemy combat and, if you would. >> congresswoman, first thing i would do is refer to the senate bill, which i think no longer uses the phrase unlawful enemy combatants in defining jurisdiction. i think the phrase used in that bill is an privileged enemy belligerent, which is a phrase that many military law experts use and erace.

in response more broadly to your question i've would refer u to the definition that we are now usinwith the department of justice in our guantanamo habeas litigation for who we say we have the autrity to detain. that was the definition that was modified in march from the previous adnistration's definition. in that definition we no longer use the phrase on lawful enemy combatants, and it is a definition that is more closely tied to the authorization for the use of military force that congress psed in 2001 as informed by the laws of war. that is the definition we are using as our attention authority for the people at guantanamo. and to lead prosecutor in tha group is a subset of that group that we think we have the authority to detain. >> but the congress has not changed the definition. >> no.

you are. >> we changed the definition in our submission tthe courts of who we say we have the authority to hold. >> will the gentle lady yield? >> i will yield. >> in the senate billhat they passed last night they used this definition. unprivileged enemy belligerence. so the senate is using that. >> but we aren't. the current law isn't. >> no, we didn't address it in our bill. that's something will have to address in conference. >> the military commissns act in the senate arms servicebill to which the preshdent just referred, has this definition. they use different terms to describe it. as mr.ohnson said there is a possibility of linking the personal jurisdictions more explicitly to the authorization to use military force from september 2001. that is still, i think, an open question, and we are very interested in working with congress on that. one other point that may help address the basic point you were

advancing, congressman sanchez, that is whatever personal jurisdiction issues exist, military commissions will be limited to toward the subject matter jurisdiction to block or violation. so an ordinary federal crime would be, i think, outside the scope of what could be tried there rardless of wt personal jurisdiction issues. i just wanted to add tha limiting factor that i think is an important part of how to look at this. >> thank you, mr. chairman. >> thank you, gentle lady texas. >> thank you, mr. chairman. hearing the phrase unprivileged enemy belligerent took me back to my lot days when bank robbers were described as holders, not in due course. not relevant. we are in an ongoing fight that with respect to new folks, does the administration plan to use preventive detention systems for terrorists detainees in the

future? >> it is difficult to predict the future. we believe that the congress authized law of war detention for these particular detainees at guantanamo. that is the definition we are now using. the courts have reaffirmed that principle as recently as 2004. >> okay. but if we picked up by guy on the battlefield today that is clearly an al-qaeda or affiliate of al-qaeda, does the administration simply have the authority to detain that new combatants or and privileges to any belligerent under the rules? if so, where do you plan to keep these guys or wen, depending on who you pick up? >> if that detainee fits within what congress adopted in 2001 -

i think the language was al-qaeda, taliban, and they are at gitmo. we certainly believe we have the authority to detain that person. >> let's focus at the new guys who aren't at gitmo. where did you keep those fks? let's broaden the question. we pick them up at yemen. what is the administration's position? >> if they are a member of al-qaeda and constitute a security threat we would certainly look to detain them after recapture them some place. where exactly that is, i would hesitate to try to speculate right here. >> okay. are there plans within the administration to determine where that place might be? >> yes, sir. >> and to what we need to bring down here to talk to talk aut t? >> i can try to help you identify that person some merit than the department. >> i am always nervous when a

lawyer -- >> a lawyer doesn't always have the answers. >> lawyers perse their words very easily. >> if we prevail we don't keep these guys forever. what if the don't preil? >> as the president said in may, if we have the detention authority there should also be some form of periodic riew. >> wait a minute. well, do you or don't you have the detention thority? >> we believe we have the dention authority with respect tohe current population. there comes a time -- and i think the supreme court may have alluded to this -- that if circumstances change and the person is just sitting there year after year after year we may lose that authority. >> because theight isver? because the fight is over? >> because the fight is over and/oro longer a threat. >> if the fight is over we could

not hold any of them. >> hell are we we going to know? >> under the traditional law of war principal you hold them until the cessation of hostilities, until the war is over. and this obviously is a different kind of war. so we think some form of a periodic review is appropriate that makes a threat assessment. >> mr. kris, are you -- what kind of assurance -- once you hear the question you will say none. but what kind of assurances can you give us that some fedal judge in the system somewhere won't decide that because this fight is, as mr. johnson just said, not what we fought before and the idea of cessation of hostilities is so nebulous that it no longer applies? can we trust that it won't come to at conclusion? >> on one level you are right. i am obviously cannot control article three judges. i admitted earlier i can't

control the media, and a happy to make a similar assertion here. i do have a good deal of faith in our federal justice system and the justices on it. if anyone judge makes an error have pellate review. >> the judiciary committee earlier this week heard some gut wrenching testimony about the poor soul who was a nerdly scientist keep trying to develop to a cell. he knew that these chemicals nnot be flown to alaska. he gives them to the ups guy. clearly marked them ground not knowing, of course, that ups flys everything. he flew something up there unintentionally. arrest him. while he's in jail the chemicals, the epa decides that he has abandoned the chemicals.

seventeen months. and so that is unfair accusation to try to charaerize the entire system because the entire system is good. there are rogue events that cause me great concern when ge have a prosecutor on one side and a judge on the other side who could not let the facts and go, goodness, gracious, this is nuts. cayou give me great confidence that it is even more important in this arena that we don't let these guys go? >> i think that the lesson of that is, i guess, that even in a system like article three where you have the largest number checks and balans and unquestioned system it legitimacy, mistakes are possible. >> human endeavor. >> ksm is acquitted. worst of all circumstances. can we still hold him?

will we still hold them is a better question. >> i said earlier in response to another question that it is my view that if yo have detention authority, law of war authority to hold a dangerous person that is true irrespective of what happens in the prosecution. >> that is bare. thank you. >> to demand from washington. >> thank you, mr. chairman. sentiment about the key for coming. i was one of the members down there on monday. i get to see the book-end of the physical facilities. i have to say that the facilities down there are certainly much improved over what we saw in '02. i want to echo that it is a ght to behold whenever we get

to travel overseas and visit our men and women in the military d see the jnbs they do. a great job under difficult circumstances. with regards to the office of military prosecution facilator conversation that we had down there, he did make his own forceful case for military commissions. i would not expect otherwise. and he provided some conjecture about ghat might happen because the hearings process is a state. but i guess what may be -- what may be may not be, as well. it is tough to say that his prediction will come sure not in part because we did not have the opportunity to have the same kinds of discussions with the office of military commission defense. so i made the point that maybe we ought to have a chance to chat with omcd folks as well and look forward to how they see the process and what kinds of concerns they have. i think we need to hear both

sides in order to have a better discussion and more informed discussion as we move forward. with regard to the mca and the senate, of course we did not have language in the house version. we will have to sort things out. but mr. johnson, can you discuss the administration's position on this debate about voluntary versus reliability standards in the use of evidence and why the administration is where it is on this issue? >> the administratn believes th a voluntary standard is the right way to go. the current law and the current bill have a totality of circumstances reliability standard. we think that as these prosecutions progress more judges will likely to impose a voluntary this requirement.

and we think they're fo it is important that they get in right. and so what we in the administraon now advocing is a voluntariness standard. and there is language we can give you specifically. tailored to military operations, military intelligence collection circumstances so that consistent with the law of the judges get this right. we are not talking about imposing a voluntariness standard on soldiers at the pointf capture. i want to be perfectly clear abouthat. and one of the things the senate bill does is specifically exempt from military commissions any randa requirements. article1f the ucmj. what we are talking about is a voluntary standardhat is not far from what admiral mcdonald advocated the other week that when he was here.

i think the jags advoced that the voluntariness be a factor. >> they raised. >> we are arguing that it be the standard. really what we are saying is not that different. we are urgi a voluntariness standard that takes account of the circumstans of how the military does his its job. >> as i understand your argument it gets at some of the heart. what i hearou saying, i guess, is you are trying to, perhaps, anticipate what a future trial judge or a series of future droughts judges may determine about t use of their reliability std it and by participating that may be moving to the voluntariness standard. but it in the mcnow so we dgn't have to go back and change it later, which has been one of the problems we have had. i think, in the past the mca in getting it wrong.

i want to echo what the chairman said, which is that it is important that be have a process that is sustainable, that brings convictions that can be upheld on aeal. >> and quily -- the yellow light is on. material support of terrorism. where does the administration said on material support of terrorism as a charitable offense in the mca? in support of it or not, and why? >> we think article three prosecutions are for violatis of federal criminal law and military commissions par for violations of the laws. we looked at it carefully and concluded that the histocal ecedent for material support as of law of war offense was questionable. and therefore material support shoulde prosecuted, if it is prosecuted, in article three federal courts.

>> thank you. >> thank you, gentlemen. >> thank you, mr. chairman. there seems to be a shift in this administration to a few what i would call acts of war as criminal justice issues where the obal war on terror is now overseas contingency operations d terrorist attacks are now man-caused disasters. we are a nation of war and we are fighting against disparate irregular forces and by an ideology oft use terrorism as a tactic. all enemy combatants should be detained until this war is over only if there are alleged violatns of war should these enemies be tried through a judicial process. but even if they are found innocent of that, they are still

enemy combatants and should be detained, again, for however long it takes us to win this war. i would like to know, is this the administration's view? acts of war are criminal justice issues. >> congressman, i think a couple of points. the president has made clear, and i want to echo it, w are at war. we need to win that war. we need to defeat our adversary. to do that we must use all of e tools in our toolbox, all elements of national power consistent with the rule of law, that includes mitary techniques, intelligence techniques, diplomatic techniques, and anything else that is consistent with the rule of law andhat will help us when and nd includes also mility justice, prosecutions and military commissions and where it is appropriate prosecutions before article three accords. i think the administration wants to be able to use whenever tool

is the most effective under the circumstances to all us to win. >> b you do not believe that enemy combatants should be detained until this war is one? >> no come on the conary, i think thsupreme court has made clear that under the authorization to use military force there is authority to detain command we are, in fact, detaining many people under that theory now. it is being tested in habeas corpus proceedings, but we are simply doing it. at some point -- >> excuse me, but i think you missed my point. there are two levels. i've faced -- i have been face-to-face with the enemy. i will tell you this. a couple points. mber one, we are a nation at war. and so the question is, in any combat senseught to be detained so long as we are a nation at war. and the other issue is when there ae violations of four of

the loss of land warfare then no doubt those those people shoule tried. but i think we have this fuzzy-headed view that when somebody is plucked o the battlefield they need to go through some judicial process to determine whether or not they should be detained. and i think -- and you say it is the policy that they can. the question is, we should have an absolute policy that people that our enemy combatants want be detained until this war is over with. >> congressan, the president agrees with you. we are at war. he said that as recently as may 21st. given the nature of the conflict there is not going to be as to render. not going to be a fixed date for a surrender, which is why it is appropriate for those we are detaining under our law of war authority to have some form of periodic review because there

may be a point in the ture where that person is deemed no longer a threat to. >> the person -- while the release people who we thought were no border ahreat. back on the battlefield. so o ability to decipher that isn't very good. you know, again, i think that there are afew that results the criminal-justice issue pretax of terrorism or law enforcemen problems. simply serving in iraq in 2005-2006, i want tell yo for the troops on the ground tre is a different reality that exists. mr. chairman, i yield back the balance of my time. >> before i call on mr. courtney, when does the war end? >> i'm sorry, as mr. johnson said, that is very difficult to

predict. this is of war unlike others. as he said earlier -- >> we know that. in your legal opinion when does the war end? >> i don't know if that is so much a legal judgement as it is a factual and mility judgment as to win the war ends. if you are getting at -- >> why don't you do this for me. answer that for the record. go back and think about it and send us an answer, when does the war e? because at that moment those detainees, as bad as they are, under the law of war, would be free. >> i agree with you. >> am i correct? yes. >> so i think it would be helpful to our committee if you would do some research and send

us an answer to the queson for the record when the war ends, under what circumstances does the war and? spell it out for us. you're a good lawyer. you can do it. mr. courtney. >> thankou, mr. chairman listening to some of the questions it seems like there is almost an assumption that this administration walked into office with a static population at guantanamo bay and that we ar sort of moving from that number of 240 which existed back in january to where we are today. the fact ofhe matter is that there are over 700 people that were detained at guantanamo bay. is that correct, mr. johnson? >> yes. >> and so when president obama took office and there were only 240 in that facility by nat tells me that out 540 people have e have

been transferred or released, whatever term you want to use, before he evdn steps a foot into the white house. >> that is correct. >> so they're obviously has been of a process that started with the prior administration using national security as the measuring stick for evaluating the decision to hold people or transfer the back to other countries. i mean, and the obvious conclusion that you have to deduce from just the math. >> direct. >> so and when the president clearly stated that going through this remaining minority of detainee's that are at guantanamo bay and sorting through who trying to go to military commissions into is gog to go to article three courts. he was very upfront about the fact that there may be this other tegory here don necessarily easily fit into those referrals. the administration's position is that we have the right to hold

them under the law of war. that correct? >> yes. >> and that the president has also made clear that the safety of the american people, consistent with the rule of law, is the parount concern. >> so they're really is no fuzziness here about what the administration's position is in terms of protecting this country and using a non criminal police measuring stick in terms of what the administration's policy is. he is basing tha detention law, the opinion, on the 2001 authorization which coness enacted. that correct? >> yes, sir. >> so when the senate did their modification of the commission's in the authorization bill, did they touch that piece of the system? with the administration still just going to ask for us to

leave that alone? >> the senate amendment to the military commissions act ds not purport to address lot of for detention. that is correct. and we believe with respect to the current to guantanamo population that the authorization for the use of military force as it was interpreted by the supreme court provides suffient authority to detain the current population. >> so nobody is going anywhere? again, in the opinion of our military and administration officials believe still poses a threat whether they are found guilty by plea or trial of an offense in the military commission or article three court because of that policy. isn't that correct? >> that is correct. that is our primary obligation to the american people. >> and lastly, mr. president, how many people in the

department of justice to we incarcerate on a given day roughly? >> the bureau of prisons has of very large population. i think it is 100,000 or so under lock and key right now. >> my state of conneccut tre is probably roughly 20,000 people incarcerated on a given day. obviously we have a system that n accommodate 240 people and individuals and as safe and secure manner, and we proved that every single day inerms of the hard work that people in the bureau of corrections to, is that correct? >> absolutely right. >> i yield back. >> young lady from oklahoma. >> thank you, mr. chairman. i appreciate you coming to demand, and your testimony today. but how we treat our enemy combatants, especially on the battlefield. i had of little bit of a

different tack i would like to ask you about today which deals with the situation occurring in my home state, in oklahoma, and it deals gith our american soldiers and how they are treated on the battlefield and their rights in a military court systems. and since both of you are with the legal system would just like to tell you about this situation, ask your opinion, and hopefully need you with separation and ascii specifically if you will look into this situation for me as a member of congress. let me just start out. i heard mr. forbes asking . johnson about the goals of the administration in relation to detainees and their rights. i think you said the administration's goal is justice for the victims of terror and so for the u.s. citizens. justice for all. when we talk about our milary courts. i guess my question is, do you

believe american soldiers have a constitutional right to a fair trial? >> believe that under the ucmj american soldiers, sailors, airmen have aumbeof rights to a fair trial. >> thank you. and does an americanoldier have the right to defend themselves in a combat zone if they were to run against a member of al-qaeda or a known terrorist? do they have the right to defend themselves? >> absolutely. >> and during a military trial is it permissib for a prosecutor, a government prosecutor to withhold or fail to provide exculpatory evidence to the defense of an american soldier? >> first of all, as a former prosecutor myself i hesitate to comment on what somebody did in

a particular trial or a decision made in a particular prosecution, and s i wouldn' want my comment to be interpreted as that. as a general matter that government has an obligation to disclose exculpatory evidence. >> with an american citizen or soldier be given a fair trial if evidence is withheld purposely from the defense that is is exculpatory? >> as a general matter -- again, i am not commenting on a particular case. prosecutors have an obligation to disclosexculpatory evidence and if they got there should be consequences. >> good. >> okay. so that disney to a to a point. that is that we have had at gentlemen from my home ste. and not determining guilt or not build on this situation. what i do want to make sure is that when our american soldiers who are away from our country

defending our nation and on foreign soil who run across enemy combatants that are in that land that they had full rights as american citizens because they are, of course, taking away me per and their country and lives in defending ourountry. we need to make sure we protect them just as much as we give rights to detainee's or enemy combatants. in a particular case there has been a gentlemen, first lieutenant michael has gone to trial, had a trial. but there have been very deep coerns from my congressional delegation and from others who believe that evidence was withld from the defense. he was accused of shooting an al-qaeda member who had just killed two of his fellow shoulders in his platoon using an explosive device. so there is some question about

whether the trialas fair because not all evidence was presented in cou. we have asked for the conning authority to look at the evidence and to make a ruling and just yesterday they made a ruling that they felt the trial was fair. i guess what i am asking is, i am going to give you this information and ask that you would take it back. my goal is to make sure our american soldiers have every single right that they deserve to have a fair trial to stus much as an enemy detainee. >> congress on a cot now that you have mention the case, i am awa of the case. the secretary of defense has received correspondence about the case. because the cas is in the ucmj process i am limited in terms of what i can do or what the secretary can do to try to influence that, nor should we try to do that. but i am happy to look at whatever you ask me to do. >> all i am asking you is to look at the process, not the

outcome. thank you. >> thanks, gentle lady. mrs. davis? >> thank you. thank you both for being here. admiral mcdonald, the judge advocate general for the navy, discussed the issue of reciprocity. and the questionas whether the u.s. troops in detainee's and packs the way our service members will be treated on the battlefield, something i know you are very familiar with. at that time he said that would be very concerned about other nations looking in on the u.s. and making a determination that it is good enough for t u.s. it is good enough for us and perhaps doing a lot of damage and harm internationally. that was a time that we obviously were very concerned about what was happening and the impas. do you share his views on that? it really does make a difference to our tros in the field how

we hane this process? i hear repeatedly from up by military lawyer colleagues that reciprocity is important. we are concerned about how our people would be treated if they were captured, and it is important, therefore, to get it right for that reason. >> i will say i agree. jay and i and admiral macdonell testified together a few weeks ago. he expressed that same view there, which i found persuasive. he said, and i think is right, the lislation we are working on satisfies that reciprocity principle. >> are there any changes that senate has made first war in our discussions that would cause you any concern in those areas? and are some of the issues very differeny portrayed in the outside world?

have youeen that in any way? portrayed differently than the way you see then? >> well, this goes back to -- well, let me begin with this. i think that the big change that the senate bill makes to current law is a ban on the use of statements taken as a result of parole and human degrading treatment. the old bill, the current law permitted that possibility. and i think that dad more to hurt our credibility in the military commissions process than any other one thing. and so whenever the house of representatives decides tdo, i would hope that you would agree that we should not permit the possibility ibility of the stats taken as a result of human-degrading treatment.

that is certainly that we would want our military to face, and as a matter of simple american values i would submit that we should not permit it in any urt stem governed by the united states. >> i agree with that example. >> thank you. as we look to -- if we find ourselves in a position of transferring detainees there are many of those issues that we are going to be looking at, how we structure the proceedings, due process rights, right to be present during adjudication. in that transfer is there anything that you feel might be -- might affect any of these considerations? are there some complications that arise as a result of the transfer, and what should w be the most concerned about? >> we are both pretty confident

that the reform of the military commissions act of 2006, reform of military commissions to make it a robust process that more closely resembles the usmj process is good all-around irrespective of where they are conducted. >> is there anything in the way appellate review rights, other considerations that you think would be at playere? we need to look at further. >> in terms of appellate rights the administration embraces the idea in the senate bill that there ought to be a broader scope of you. i'd and where we differ with the senate bill is we believehat the appellate court should be an

internal military court, court of military commission review, plus the d.c. circuit, the court of appeals for the d.c. circuit >> thank you. >> thank the gentle lady. mr. rooney. >> thank you, mr. chairman. ..