representative of the department of defense, as he has stated, and the president has stated, where this is feasible, we would seek to prosecute the detainees, in article. courts. -- article 3 courts. .

to have a flexible set of factors. those that are prosecutable would have vie lated both articles and title 18. >> i want to talk to you about the appeal process. it seems to me that if the defendant were charged with a federal crime somewhere in florida, that that defendant essentially has one tier of appellate system with an unlikely appeal to the supreme court. a defendant in an american

court, a citizen of this country, would not have as many appellate tiers as somebody outside of the country. jo our court martial process after that, they have the of appeal to the supreme court. what we are saying is that if you want to to the extent that you can stay faithful to the u. c. m. j. one way to approach it would be to allow the court of military

commissions review. either military judges and civilian judges. after that, you could go into the federal system. the d.c. circuit as it's constituted today. can taf do legal sufficientish yen si? yes, they can. that body is given both factual and legal sufficientish yen si review, they can do that. i think i would prefer the current system. ñ used to

doing the legal sufficientish yen si. you made recommendations on how to handle classified evidence and the admission of coerced statements. do you have any other recommendations you would make? >> no, sir. those are the two. senator mccain said we have to get these eshoos moving. that's really what my recommendations go to. we wou

we would close a meeting when classified evidence is being introduced and add it to the sepa rules that has 20 years of practice. that's probably a better approach to get these commissions moving. one of the complaints is that the judges are demanding they do everything with written permission, instead of what cepa allows. that's why i remember the committee look at creepa plus. i do disagree with the administration on this. i think the committee has got it right on the rely ability

standard that exists in the bill. i think there is a difference between a voluntary standard that grew up and a law enforcement environment. that's different from the law of work context. i am worried that a military judge that has a vol untarriness standard is going to look at a statement taking in front of a rival when a soldier breaks down a door and takes a statement from a detainee.

>> i would look at a series of factors that would give the judge guidance of how do that with more knowledge. >> good morning, gentleman. thank you. senator mccain, graham and reid have worked diligently on all these questions. can you imagine a lot of other countries having this discussion? >> here we sit deciding something as important as this.

i thought struck a balance between military necessity and due process. when that bill didn't pass, i voted for the act that we find today. that is the prosecution of terrorists. i thought it might endanger our service members to rewrite our compliance. i thought it might undermine the basic standards of u.s. law. given that, i'm really glad we are here today looking at this opportunity to revisit.

admiral, i might turn to you. i want to quote you. making a determination that if it is good enough for the united states, it's good enough for us. perhaps doing harm and one of our service men were taken and held as a detainee. how do you think the snat provisions measure up? are these provisions good enough for the united states in your view? >> yes, sir, they are.

>> thank you for that i'd like to hear the d. o. d.'s views >> yes, with row inspect to the sun set, i'm not representing the department of justice alone. our basic idea that underlies the sun set.

it's a good idea for congress to come back and take another look at this and see whether there have been any developments that counsel some changes. that's really when it boils down to. >> mr. johnson. >> i would agree with what mr. chris said with respect that it doesn't prosecute. in the immediate years forward, we think the sun set provision is a good idea. let me turn to a follow up question on comments the

chairman made in the opening statement regarding resources on the defense side in the efforts we are discussing today. the chief defense counsel reaches a memo that i thought reaches some issues. whether the committee bill addresses the needs to the defense appropriately. may we move back across. i don't see anything to our point about is it in the current

bill. i do think that the defense council need more resources. senator the legislation itself in selecting the defense council. in terms of resources at presen@ one of the things i'm focussed on and concerned about is whether or not it is in this legislation is something i intend to push on making sure our defense counsel is adequately trained in capitol cases. their aba standards for capitol

cases. we owe is it to the system to make sure our defense council are adequately trained to handle capitol cases. >> my time is expired. >> this is primarily a defense department issue. i would like to associate myself to the remarks of my colleagues. the committees bill does follow a rule change. it doesn't define the pool from which that choice is made. >> thank you for your testimony and answering some important questions. >> thank you. >> senator reid. >> thank you, gentlemen. i just want to clarify some issues that have been previously touched upon.

regardless of where these cases are held, there will be appeal. what results from those appeals

is very difficult to predict there's been quite a lot of development in the law. there is some standard of due process that applies to a military commission. exactly what that standard is is sometimes difficult to discern in light of developments like the decision that can be i think also increasingly difficult to be sure it's hard to know for sure. >> my impression is that they reserved that issue an did not

decide it. >> i think you may be referring to ham d. the court left open the question of whether that authority would at some point run out. i think that's an accurate statement. >> i would presume that the category of that individual that have to be held will have the right to periodically raise the issue whether there still should be detained. is that right >> almost all if not all of the detainees are suing the government in respect to the

habeous corpus preceding. one of the other reasons to move quickly but thoughtfully is that this is a way in which to ensure due process prior to the court deciding on the access. is that a fair statement? >> that is a fair statement. ultimately, aren't we in a

practical decision in what the supreme court holds. that's one reason we are here today doing this again? >> yes, sir, i would agree. >> what i would propose is using voluntary ness as not the only factor but others being the statement that is corroberated. my opinion is that the supreme court or federal court would recognize that there are fundamental differences between a standard that grew up in a law enforcement paradigm versus one we are trying to understand in a law of+5 war paradigm.

if you are evaluating a statement taken at the point of capture. you mayway vol untearinessless. as you become more separated from the battlefield. six months to a year after the detainee is removed and in a facility like guantanamo, then it would be more important in the judge's mind. we leave that to the judge >> to either try to give e some

type of due process. either military position or a trial in article three courts. are there some people that may not get any procedure at all. >> putting aside anyone who has been released or may be transferred to another country in the future. i think it's 5:0ity to say the remaining prosecution they are subject to the periodic review or those that rye late the laws of war that we feel can and should prosecute.

>> those should be referred to in the article three process. thank you gentleman. as you know, over the course of many years. the former administration has released a number of detainees from guantanamo. we are hoping that many of the other countries will take some of the detainees remaining. we need to be mindful attacks we are mitigating the appropriate institutions or mechanisms of enforcement such as a counter terrorism law. we need to work with the countries in the region that

have a track record >> the saudis have developed a reintegration of society into saudi arabia. efforts are under way to convince saudi arabia to accept some of the yemin detainees that have tribal connections. my question is how is the department of defense addressing the problem that are not capable of mit dpating the defense.

can you provide your continue on working on the situations to accept these detainees that share the same tribal affiliation? >> senator, i agree with just about everything you've said. many people do not understand that xyz country will not take these people, it is the ability to monitor in that accepting nation so that the detainee doesn't simply return to the

fight the safe tift american people is of the utmost concern. we believe strongly that rehabilitation programs like the one you refer to is something we should encourage and promote. it's something we are very, very focussed on. i agree. it's essential that we transfer people. senator, i would agree with mr. johnson on this. particularly with our military members. we are concerned about returning fighters. this is a big issue for us.

i think the way mr. johnson characterized it is exactly right. >> thank you. also, i think that we need to b@ mindful that the interrogation produced may comprimise the ability. through an interrogation method that would involve torture. mr. johnson and i are working closely together on this.

there is a review that makes judgements as talked about, this is a fact intensive judgement. identity of the victims, location of the events and a variety of other factors. these kinds of form selection choices are not unfamiliar to federal prosecutors. they have to make these kinds of choices in other cases as well. between federal and state and ucmj. there has to be the process in which the case is reviewed and

worked up by a joint team and ten a judgement made about when and where it ought to be prosecuted. >> thank you. >> thank you senator. we'll have a 2:00 second round with this panel. >> i wish it could be a lot longer. first, admiral mcdonald. do you believe our language conforms to the standards? >> yes, sir. i do. there shouldn't be any military

commissions. i wonder if you can tell us as kind of a military man and jag officer in the navy. what makes it difficult? why would you want to try anyone under military commisdx or need to try anybody with military commissions? this is defined in an environment. >> give us an example of that. it would go to the very coarsive environment where we are relying

on our soldiers to go no a dangerous environment where in many instances we have to break down doors and we are worried about their safety. we don't want them to have to stop and think about giving miranda rights or giving article 31 b rights. we don't want them thinking in my personal opinion about whether or not the statements that they are getting from someone there are thing that's come up that just cannot be handled. the other thing i would say, sir, this is to your point to

your opening about a fair and just process. we need to feel that these commissions can try anyone. i understand that the president has prefersed article three courts when we leave here today, we ought to be looking at this bill and saying it is fair and just anybody should be able to be tried under this process. >> quickly, relative to your

totality of the circumstances relative to whether a statement obtained is coercive. in our bill, a statement obtained by cruel treatment is not admissible. we put in 2006 the statement taken before 2005 and a different standard opposed to statements after. your bill eliminate that's distinction. statements taken under torture are eliminated.

c. i. d. statements are eliminated. i'm talking about some level of coercion below those standards. >> one more thing i have to clear up and this is a question of location. our bill clearly is not going to distinguish as to what the procedures are dependent on what the location of the military commission is depending on where the location is, i don't see that at all.

finally, however, on the other side of the coin, if you are going to try people for article three crimes, which is your preference, there's no way those folks can be cried in guantanamo. you cannot have a jury empan willment take months with hundreds of citizens take tone guantanamo to little in a panel in an article 3 case. there are many rvens we need to bring people to the united states as a practical matter. i don't see there is a difference. you've been asked for the record to give your thoughts on that.

in talking about locations, jay and i have been caution because these are difficult issues. we will get you something for the record. very similar to what admiral was talking about.

senator graham >> thank you. i think we'll find some common ground as far as the statement goes. we both view it the same. admiral mcdonald, you describe the situations very well. there's not really a whole lot of differents. the politics of this for lack of a better word. is it your view that closing guantanamo bay would be an overall benefit of starting over on the detainee policy? >> it is my view that closing

guantanamo enhances nashville security. >> i would like to be the odd goi out as a republican. everyone has said that starting over would take a tool out of our arsenal. guantanamo is the best run facility is that true? >> yes, it is. i agree that the professionalism of our personnel there is remarkable. >> to the guard force families who may be listening. when your loved one goes through everyday at guantanamo bay is

making a sacrifice. i do think it is important. i take it to be one of the main reasons we are doing this work is to enhance the legity massy. i agree. the last thought is i can't believe frankly given the supreme court cases that if you close guantanamo mai bay and move inside the united states and perform a military trial like we did in world war ii. if we close guantanamo bay and move the detape ys within the united states that they will be conferred upon them thanks we

are recommending even if the commissions were held in the united states. not changing the die nm yiks the court would apply. we think when we are proposing will pass muster in the united states. senator, we are not suggesting that the full range we would apply depending on location. we have referring to voluntariness. when you look at the suggestion of the administration on, it's really not that different from what admiral mcdonald has

described. >> this really comes down to that light. bringing the the military commission in terms of additional constitutional rights should not matter. i think we probably can reach some common ground between when i would consider to be a balancing test using voluntariness and what the administration is using right now. thank you. senator lieberman >> thank you, senator. senator levin asked a request of why would you try any of these people in a military commission setting as our bill requires?

i thought your answer was compelling and principal. i want to ask the question of why would anyone prefer to try people apprehended. i was disappointed in your answer and it pulled me back a little about my feeling and accepting the role for the military commissions for handling these people. the fact is that from the beginning of our country from the revolutionary war, we've used military tribunals to try war criminals. people we have captured for vie layingses. the unique circumstances for

this war and the people that have attacked us on 9/11 have let us down including the supreme court lead to a road not only unjust but consistent. why would i in light of all that say that the administration prefers to bring these people before article 3 courts which are really today's version of the tribunals we've used. >> senator, please don't misinterpret my remarks. >> i mraud the committee's

initiative. i think the military should be a valid commission. we support what you are doing. the president has made that clear. when you are dealing with terrorists who one of their fundamental aims is killing civilians. it's the administration view that when you direct violence on innocent civilians that it may be appropriate that that person be brought to justice in a civilian, public for up in the

continental united states because the act of violence is the commission of title 18 as well as the law of war. i hear you. i respectfully disagree insofar as the administration has stated today. the aefkt of it is to gich these war criminals dshgs that's why we capture them, the greater legal protections of the federal courts because they have chosen to do something that has not been done before in our history, which is to attack americans and kill people as they did in 9/11. civilians, it doesn't matter. to do it outside of uniform.

it puts us in an odd position that we are giving these terrorists, greater protections in our federal courts than we've given war criminals than at any other time in history. they are at least this brought al and inhumane than any war criminals we have ever apprehended. yes, it may be also an act of murder to have killed people in the trade towers -- twin towers on 9/11. it was an act of war. the people that did that don't discern the same constitutional protecti protections in a court like

someone else would. i'm over my time. i do look forward to continuing with you and others in administration. we will consider ourselves part of a movement to have a preference of trying him as a criminal as opposed to in a military tribunal. that begs another question. if we are 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 2020 some odd

people to proceed as article 3 or military commissions in that time frame. where will they be? what about those who have been acquitted? why does that go? would you mind touching on those issues? >> you are correct, you can't prosecute some significant subset of 2029 people before january. those we think are prosecutable and should be detained should be detained. what happens if there is an acquittal that's an interesting question. i think as a mart of legal authority, if you have the authority under the laws of war to detain someone and the

decision said that in 2004, that is true irrespective of what happens on the prosecution side. >> there for, the prosecution becomes an moot point? >> well in my judgement as a matter of legal authority, you could get their difference. there might be quality judgements one could make f. a review panel has determined that this person is a security threat and they've lost and we've gone through our periodic review and made our assessment as a mart of legal authority, we would have the ability to detain that

persons a mart of legal authority, we have law or authority pursuant to the authority granted to hold that person i truly believe these are not criminals. they are not treated as as criminals. senator. thank you.

i want to 5:0 other the system it seems to be that the judicial system involved and growing thing. we are working to make sure it is nurtured. we do have two legal systems going to bare >> while i don't agree with

that. the d.c. circuit court of appeals do we as a nation want petitions to allow with lawsuits. medical malpractice cases brought under the old system. we can stream line the habeus process. i would like to conclude with this. no one should be detained in america for an indefinite period of time without an independent judicial review. i don't want folks to think people are in jail because dik cheney or other politicians said so.

once it has been established they are dangerous, it is crazy to let them go. believing that they present a danger to this country. you don't under the law of the conflict. we need civilian judges involved with this war. it is a war without end. the president said, there will never be a definable end to this war. 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 will be able to get out of jail because they have rehabilitated themselves. some may die in jail. the process with an independent judiciary depending on their

actions. that's not being stopped on terrorism but applying american values to this war. thank you. >> this has been a very thoughtful discussion. this has been a decision about trying everyone in a military commission and trying people in a civilian court. i think there is a value of troying some of these individuals in civilian courts because they are criminals. they try to claim a mantle of warrior. that is feeding into their appeals out in the greater islam yik world. in fact, they are criminals. they have committed premeditated murder. we should not only do that, they

should be not only convicted but identified as criminals, not as warriors, et cetera. in some other cases where they have been captured on the war field. i wonder, did you have reaction to that? >> senator, my only point would be this. i think at the and of the day, we need to have full confidence there may be situations where going to a court may be given the right position. i just want -- i think it is absolutely vital when we leave here at the end of the day, it's not because we believe what we have created is a second class

system. we need to look at this that this can stand alone in the world and this can be judged by what we are putting together today. that's my only point. you ought to feel comfortable sending anybody to the process with these changes because we believe it is a fair and just position. joot ultimate test would be the subject to these procedures and consider them to be appropriate. >> yes, senator. thank you. i would conclude by saying what our bill does not address. one, we do not decide whether a person will be tried who is going to be tried is tried by an article three court or military commission. we do not make that decision in

this bill at all. don't try to or proport 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 trial. it is prty obvious to me as chairman those procedures will apply regardless of where the military commission is held. there can't be any difference in the way we write a bill on that.

in any event, we have language in the bill which incorporates the environment of the geneva ,.z for your wonderful l very testimony here. your carefully thought out

testimony will be made part of the record. we'll now move to our second panel. >> how is c-span funded? >> i don't know. i think some of the government raised. i want to say for me. 30 years ago, they created c-span as a public service. no government mandate or government money. >> washington journal is next. we'll look at the day's news and

take your calls. the united states house of representatives comes in at 10:00 a.m. eastern. the house will work on agriculture spending for 2010. live house coverage is on c-span. .