panel. our first witness is david kris, sworn in as@@@@@@@ @ as an associate, from july 2000, to may 2003, he focused on security issues, including the government's use of fisa, representing this current council and assisting the attorney general conducting oversight of the intelligence community. in our second with this is james charles johnson, from the department of defense. in this capacity, he serves as the chief legal officer for the department of defense and the legal adviser to the secretary of defense. his legal career has been a mixture of private practice and distinguished public service. mr. johnson began his career in

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

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

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

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

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

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

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

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

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

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

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

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

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

association believes is appropriate. how do you address their concerns? >> i think i can answer it in two ways. the senate bill does a pretty good job of dealing with hearsay ef and authenticity issues in a way that takes account of military operations, intelligence collections operations. in term of resources, the ability to prosecute and defend these cases. one of my special concern sin t ability to prosecute and defend these cases. one of my special conceroperati. in term of resources, the ability to prosecute and defend these cases. one of my special concerns -- with the adequate resources

of these cases. i am willing and able to help him in that task. >> thank you. centre? >> taking the questions of the chairman and the testimony that both of you gave, with the generalization that there are different potential concerns with both trials in article 3 courts and military commissions, that both can be made to work to try these particular kinds of cases. is that a generalized correct statement? " absolutely. >> that sounds right to me. >> that is why i do want i want to comment on what senator dorgan said. he knows what i am about to say. he establishes a straw man and knocks it down, but i am not a straw man. his article is better american

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

>> in the previous administration there was a very strong preference for the use of military commissions to the exclusion of article three courts. so it represents a change from the recent history. >> how about going back to world war ii and bringing it forward. >> if you go back, i think, further in time, i think you have a history of both civilian and military prosecution. and i'm not sure -- perhaps i doesn't done enough historical research to really draw a solid line that favors military commissions over other prosecution options. >> we can do that research and determine whether my assumption is correct or not. mr. johnson, in your written statement, you suggested by changing the definition to a standard tied to the 2001 authorization of using military

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

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

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

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

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

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

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

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

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

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

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

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

prosecution option. that keeps us more safe, notless. >> the detainee policy tax force angives me some pause. i see the plan of closing guantanamo in less than 180 days is unrealistic. in the report, it does nothing to dispel my concern nor the concerns of my constituents who write me daily to express uneasiness over bringing detainee's to the united states. the six month extension for publishing the report will not push back the reports due date to january 21, 2010. the day before the president will order the closure of guantanamo, this was said by the president.

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

that. it's important to distinguish between the detainee policy task force which will be the authority of the report to which you refer. we need to look at a whole range of policy issues going forward. and around, the task force designed to review each of the detainees at guantanamo bay. so the delay in coming up with a comprehensive detainee policy, i don't think necessarily undermines the ability of the separate guantanamo task force to do its review. as i say, they're more than halfway through the 240 detainees now and they do expect to be done with their initial review of all detainees by october 1. >> how many cases have they reviewed and how many are left to review, do you know? >> the -- i don't have the exact number, but the -- we are more than halfway through the 240 who

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

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

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

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

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

commissions and 145 in article three courts is an indication to me that there was a presumption that the most successful line of prosecution was in the article three court. there's an effort to enlarge the terrorism laws since 9/11 and has been the basis for successful prosecutions in article three courts. we have created leelt opportunities here to protect our nation. let me ask, if i can, a question or two here. there's a con sen about the image of military kbhigss. it's been expressed by several people at the highest level. the lieutenant colonel testified before the house committee of the judiciary recently. he said i proudly went to

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

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

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

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

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

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

i like to close by asking, what do we do with those that still pose a threat? >> as the president said in his national archives speech on may 21, there may be, at the end of our review process, that category of people who, for reasons of national security and safety of the american people, we have to continue to detain. for that category of people, what the administration believes is that there should be some sort of periodic review, whether that be every six months or 12 months, we are supporting that through. because of the nature of that conflict and because there is not readily identifiable in to that conflict, we believed that if we prevail, we should not just throw away the key and keep the person there indefinitely. there should be some sort of periodic review.

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

so much of that occurred anybody might think there was a constant series of abuses going on in guantanamo. water boarding occurred there. that was intelligence, not the military. with respect to the inspector general's review, they concluded that one case of torture occurred because of a series of techniques used against one prisoner that any one technique alone was not torture, but all together amounted to torture. so that was the extent of the military's misbehavior apparently as found there. it's just so sad to me that we are now in a position where we've got a perfectly safe, well run place at guantanamo, and somehow our own members of congress have created a

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

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

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

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

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

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

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

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

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

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

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

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

not just been invented by members of congress and certainly colin powell has never been a member of congress and he is a person . . matters, and he says we've shaken the belief america had in the wor,@@@@@@@ r

>> that's not a great track record. we're determined to have a more efficient system. >> and the information that i had when i spoke on the senate floor with respect to the preference is that the number of people associated with terrorism who have been convicted and are now serving lengthy federal prison sentences numbers around 350 or so. is that -- >> that sounds certainly -- >> at least close to the number. >> i think there are more than 200 persons in the custody of the bureau of prisons with the terrorism nexus of one sort or another. >> my information is there are 355 inmates in federal prison who have been successfully charged, product, convicted and are serving lengthy sentences as a result of their history or connection with international or domestic terrorism. the domestic terrorism may be the 200 and the others are international terrorism.

>> the last thing that i'll mention to you, i know attorneys in my home state who have represented people in guantanamo. these are attorneys in a corporate law firm. they have no particular ax to grind. in fact, if anything, they probably err on the side of a conservative view of the world and a kind of orderly established view of the world. the way in which they have been treated as advocates for people at gun taun mow has them livid. denials of access. repeated inconveniences, unnecessary hassle and bother as they try to go about -- for them, it's a pro bono activity. i'd urge you to take a look at the way in which the counsel for folks at guantanamo are treated. these are good americans who are trying to do the right thing.

they are -- they aspire to the highest standards and principles of their legal profession. and for some reason or another they come away feeling very disturbed by the way they've been treated by their own government. >> since xhi from a corporate law firm, they call me directly. >> you understand? >> yes, and they're not shy about that. so it's something i'm very sensitive to. >> thank you, chairman. >> senator hatch has a follow-up question. >> yeah, i've been concerned about this miranda matter. while i know both of you stated that miranda warnings should not be provided to detainees captured on the battlefield, that does not address the fact that there would be some miranda problems, especially if article 3 courts, you know, are to be the preferred venue for prosecution. i staunchly oppose any notion that troops in the middle of the

battlefield be required to administer warnings to captured combatants. but can either or both of you give me what is a battlefield in the context of current -- of the current conflict. well, let me stop there and then i have one question i'd like to ask. >> senator, i can offer to the committee for the record a letter that i wrote to the chairman of the house armed services committee last week on this issue. what i can say to you is that u.s. military is not providing miranda warnings to people that they capture. that's not their job, and i would have a lot of three and four-star general clients all over me if i even remotely began to suggest that our troops do that. and the only circumstance under which that happens is where the

law enforcement prosecution option is one that's being considered and we have exhausted military intelligence collection options with respect to that particular individual. as to your question about what constitutes the battlefield, obviously, given the nature of this conflict, there's no easy answer to that question. anybody who tried to give you an answer answer to that question, i suspect, would be overlooking a lot of complexity. the mission is to capture and engage the enemy. >> i would just say more generally, senator, it's important to distinguish between rules of admissibility and prosecution for whether it be a commission or article 3 court and primary conduct on the ground. when it comes to the primary conduct, the paramount concern always has to be safety and force protection and intelligence collection. it may be that some statements in some situations may not be

admissible, but you wouldn't want to compromise the safety of our troops on the line in order to preserve that for down the road. >> i agree with that. but any first year law student will tell you miranda is triggered when a suspect is in custody and is asked questions that will elicit a response that may develop in culpatory statements or evidence. given that some of these detainees have been in custody since 2002, what is being used to evacuate the veracity of previous statements they've made since being in custody, and how does the government plan to cover the admissibility issue of these statements in the article 3 courts? >> well, again, we may or may not be able to overcome those admissibility concerns in any particular case. if we can't, that may be a factor that bears on forum choice. i don't -- i can't say that in every case, every statement will be admissible under whatever standard ends up applying either in article 3 court or in a

military commission. >> would you be forced to let them go free then? >> no. i think you have to consider other evidence that's available against them. these cases don't depend entirely on statements of these people. there's, you know, there can be other evidence and prosecutors are used to working around those kinds of concerns when evidence is suppressed in any kind of environment. so you just have to work through each case one at a time and figure out what you can do. >> thank you. >> absolutely. >> let me just get the numbers straight on a couple of dates. you are indicating you will complete the review of the detainees at guantanamo bay this fall? >> that's the expectation, yes. >> and that to date, somewhere -- significantly higher than 50 of the 240 you anticipate transferring to other countries or relocating? >> substantially more than 50 have been approved for transfer. >> already approved. that's right. i'm sorry. >> and there's a significant number that you are already

pursuing article 3 prosecution, criminal prosecution. >> they've been referred for evaluation by doj and dod prosecutors jointly under that protocol. >> so it could be article three or could be military commissions. >> or in some cases we might conclude couldn't be prosecuted and we'd get thrown back but essentially, yes. >> has there been any determinations yet of those that will be recommended for indeaf findeaf indeafinite detention? >> no. >> will the decision to put somebody in the fifth category also be made by the attorney general in consultation with the secretary of defense? >> that's not an issue that is covered by this protocol. i think that's probably a broader cabinet level, principal level or presidential decision that wouldn't necessarily just be confined to those two particular. >> so that decision has yet to be made. other than the president's statements there would be due

process review of individuals placed in this category. >> yeah. it's conditional if we end up with people in that category. >> if we end up -- >> yeah. >> i understand it that you recommended that the military commission bill, senate bill, be amended to include a sunset provision. could you explain why you believe there should be a sunset provision in this? >> the main reason, i guess, is that traditionally, military commissions were used in the context of a particular conflict. this particular conflict may be unlike most others if not all others that we've dealt with with respect to how long it may endure. and so if you tie a commission to the duration of the conflict but you now have a relatively open-ended conflict, it made sense to us that after some number of years, congress come back and take a fresh look and see whether we've learned

something, whether things need to be changed. that's the main thinking behind that. >> i generally support sunset provisions, but it seems to me we do want to get a process for military commissions in place with some degree of confidence and predictability. if the conflict -- if there is no longer a need in regards to this particular conflict to continue military commissions, your recommendation would to be allow the sunset to take place? >> i don't necessarily want to go that far. all i'm saying on behalf of the administration is sunset is a mechanism that would compel and allow congress to look again at commission. see maybe they should be continued. maybe they shouldn't be. maybe they should be reformed in some way. i think we're going to learn things going forward here and after a certain number of years it may be appropriate for congress to take a second look. but i wouldn't want to prejudge any particular outcome at that

point. it would really depend on what we find. >> as you go forward, we would like you to keep the judiciary committee informed as to the numbers that are likely to be referred for prosecution, both article three and military commissions. and what procedures are being used in the event that you will be determining people need indefinite attention. obviously, where i know you'll have to submit a plan to congress as to where those individuals will be maintained if there is no guantanamo bay. >> i understand senator hatch may have asked you the question about whether given the fact that we're going to have now a presumption for article 3 jurisdiction or at trials, it would not necessarily increase the situations in which miranda warnings are given. if i mistake this, correct me. my understanding was the

case-by-case analysis in any event does not occur until after whatever questioning by the military intelligence or other related departments or agencies might be. if that is true, wouldn't this -- if that is true, even though you can have an article three trial with testimony admissible despite no miranda warning, it makes it much more difficult, i believe, and, therefore, doesn't that diminish the number of cases in which it could result in an article 3 court trial? >> that question got kind of convoluted. if you want to restate your understanding of it, that's fine. >> i think i understand you. it's certainly the case as mr. johnson said, that we need to take care of immediate intelligence and force protection first. >> right. >> nobody wants to sacrifice the safety of our troops. >> right. >> second, i think we need to be

strategic about this. but if we find that we have information that's very valuable in inculpatory but wasn't preceded by miranda warnings, obviously, that will be a factor. obviously, what outcome will follow from that in any particular case would depend -- and i guess this is the theme i keep returning to. depend on all of the facts of the case. >> but let me just -- >> but it will -- >> one of the key facts will be whether miranda warning was given because that will have a lot to do with whether evidence is admissible. is that not correct? >> i'll address my questions to either one of you. >> go ahead. >> i thought you were talking to him. >> i'm sorry. i kind of was. whichever one of you wants to answer is fine with me. the question is -- well, let's do it in order. are there -- is it true that in order to get an article three prosecution it's a whole lot

better to have a miranda warning if you're going to rely on statements given by the defendant? >> yes, it will be better. of course, there are exceptions. the public safety exception is important, too. but i take your basic point, yes. >> so given -- now is the presumption for an article 3 trial, therefore, going to override what i heard you to say was the preeminent concern that whichever battlefield intelligence questioning needs to occur will occur first without troord how the case is ultimately going to be disposed of? >> if i understand you, i think the answer is clearly not. we would want to gather intelligence and protect our troops as the paramount concern and then see what we can do. >> seek whatever information you need to in the beginning to gather the troops and gather intelligence.

second now is a change in the hierarchy of values. after that, the next presumption is that the case should be an article three case, if possible. >> again, i think i understand where you are going. my only quarrel with@@@@@@h@ @ >> i understand that. but what we're getting at is it's going to be really hard to

get an article three prosecution if you don't give miranda warnings. if the presumption is the case will be article three cases, not military commissions, then by definition, you'll have to have given miranda warnings in most of them. >> and if that's the case, then that directly conflicts with the first priority, which is getting good military intelligence because once you give a miranda warning, you'll probably not get a whole lot, at least in most cases. so doesn't this change in presumption potentially work its way up the chain and conflict with the first priority, which is to get military intelligence? >> senator, let me try to answer that. >> sure. >> by reading to you a portion of the protocol that's been worked out between doj and dod. there's a presumption that where feesible, 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 military commission, it may be prosecuted there. and then we go on through three sets of factors to evaluate with each case. i'll just read one of the three sets. strength of interest. the factors to be considered here are the nature of the offenses to be charged or any pending charges. the nature and gravity of the conduct under lying the offenses. the identity of victims of the offense, the location in which the offense occurred, the location and context in which the individual was apprehended, and the manner in which the case was investigated and evidence gathered, including the investigating entities, and the other two sets of factors sort of go on in similar vain. >> so isn't it likely, though, that if there is not a change in procedure in the original intelligence gathering, whether the question is by the military or by the intelligence services, cia or whatever it might be, if

they're not routinely giving miranda warnings, and i gather they would not be, even though there may be a presumption to try to get prosecutable cases into article three courts, the reality is without miranda warnings haven't been given in most cases, the presumption is probably going to be overridden on that factor alone in many, perhaps the majority of cases. >> i would hesitate to try to predict how the cases are going to shake out in response to your question. i do know that this protocol was worked out with sufficient flexibility to take account of that and other issues so that we have both avenues of prosecution available for dealing with international terrorists. >> yeah. >> by the way, i think everyone is in favor of having both avenues available. and i'm not arguing with the priorities here and so on. but i think i have trouble understanding how you could get

to the situation where you have a lot of military commissions as opposed to -- a lot of article three trials as opposed to military commissions, if, in fact, there is not a fairly early miranda warning given in this situation. >> i mean, i guess -- two things. if you have a situation in which the guy doesn't talk, you don't mirandize him. if you have him on video, eyewitnesses or whatever, there may be a situation where the statements don't, obviously, make any difference. the other is while we do want to be strategic about this and we try to sort of anticipate the end game of the process at the earliest possible stage, that's only sensible, i think the concern you are getting at, and i think it's a fair one is you don't want the tail to end up wagging the dog. and i do think that's a legitimate concern. but i think we have enough flexibility under this protocol to take that into account and guard against it. >> if i could just suggest in the interest of time here. we have another panel we want to get to. anything else you'd like to add

to the record that further clarifies this if you think it's necessary, we'd be happy to receive it. because i think it is an interesting question that's raised and we could perhaps answer some questions our colleagues might have about this if there's anything else you want to supplement the record. >> i thank senator kyl for that. i request you keep us informed. if there's other information you believe we should have for part of our record. i suspect this will not be the last hearing we'll be having on this subject. this is an evolving issue, and one which is certainly challenging to the department of justice and the department of defense. and we thank both of you for your service and for your testimony here. we'll now turn to our second panel. let me introduce the second panel as they come forward. first we have david laughman. now serves as partner with

kelly, dries, white collar crime and litigation practice group. he served an assistant u.s. attorney for the eastern district of virginia where he specialized in prosecutes terrorism, espionage and other national security cases in 2005 served as the lead trial council in the government's successful prosecution of ahmad omar abah ali known as virginia jihad case. this case involved an american citizen who was convicted of providing material support and resources to al qaeda conspiring to assassinate the president of the united states, conspiring to hijack and destroy aircraft and other charges. he was just recently, i think yesterday, sentenced to life imprisonment. our second witness is deborah pearlstein. she joined the woodrow wilson school for public and international affairs at princeton university in 2007 as an assistant research scholar in the law and public affairs program. from 2003 to 2006, she served as the founding director of law and security programs at human

rights first where she led the organization's efforts in research litigation, advocacy surrounding u.s. detention and interrogation operations. among other projects she led the first monitoring mission to guantanamo bay, prepared a series of briefs to the united states supreme court and co-authored multiple reports on the human rights impact of u.s. national security policy. she was appointed in 2009 to the american bar association advisory committee on law and national security. and our third witness is michael edny. he's a counsel to the washington, d.c., office of gibson, dunn and crutcher. from 2007 to 2009, mr. edny was a white house legal adviser to president bush's national security counsel. he assisted in coordinating the administration's response to national security legal issues and controversies. his principal focus was national security related litigation and congressional oversight.

mr. edney previously worked in the justice department office of legal counsel. we welcome all three of you to the committee and we appreciate very much your willingness to testify. as is the tradition of our committee, if you'd please rise. i'll administer the oath. do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? thank you very much. please have a seat. mr. layoffman, we'll start with you. >> thank you, mr. chairman, senator kyl. thank you for inviting me to testify here today. yesterday morning in an alexandria, virginia, hear on

guantanamo bay. going back there now. >> the most dangerous of these terrorists are serving their sentence at the supermax facility operated by the federal bureau of prisons in florence, colorado. congress has ignored this history of experience. it has also ignored the department of justice's regulatory authority to tighten security for individuals who either are being detained pending trial on terrorism related charges or have been convicted of such offense. under federal regulations, the attorney general has broad discretion to impose special administrative measures that severely restrict the detainees' ability to engage in conduct while incarcerated that could present a national security risk, including restrictions on contact with other inmates, even group prayer with other muslim inmates and with the outside world. as the obama administration and congress grapple with resolving

the detention of prisoners in guantanamo bay it is essential to create a legal architecture that gives the executive branch flexibility in determining whether and where to bring terrorism prosecutions. one option that must be preserved, among other options with regard to guantanamo detainees and future cases is the criminal prosecution of detainees in federal courts. in its preliminary report issued on july 22nd, the detention policy task force recognized the importance of preserving both criminal prosecution and military commissions as options for the government in determining where to prosecute individuals accused of engaging in terrorism. the task force identified three broad sets of factors that the government will employ in determining the appropriate forum for a terrorism prosecution. the factors identified in the task force's preliminary report reflect a recognition while criminal prosecutions may be generally desirable, certain terrorism cases either should

not or cannot be brought in article three courts. in my judgment, these cases include cases where the defendant is accused of@@@@@@@ j commission subject to oversight and under rules that balance a defendant's right to a fair proceeding with the government's legitimate right to protect

national security interests. president obama was wise -- pending procedural reforms. i commend you for holding today's hearing and i urge the subcommittee to follow a course that enables the administration to bring detainee and other terrorism cases in criminal courts without restriction while preserving its ability to bring prosecutions and military commissions where appropriate. thank you. >> thank you, mr. laufman. ms. pearlstein. >> thank you chairman cardin, senator kyl, members of the subcommittee. thanks for the opportunity to testify on this important subject. the preliminary report of the administration detention policy tsk force announced the administration's intention to use reformed military commission proceedings to retry some fraction of the detainees currently held at guantanamo bay. while i continue to doubt that the use of a new military commission system is a necessary

course of policy, i also believe that it is possible to conduct commission proceedings for certain crimes in a way that comports with u.s. and international law ensuring that any future proceedings meet those standards is now critical responsibility of congress. in this brief statement, i'd like to highlight just a few of the recommendations i've made that i believe are essential to helping ensure that any commission process going forward complies with applicable u.s. international law. these recommendations involve both legislative frameworks governing the commissions and the protocol recently put forward by the detention policy task force for determining whether to proceed with criminal prosecution in a military commission or in an article three court. the administration is right to recognize the guidance is needed in these exceptional circumstances to constrain the exercise of prosecutorial discretion. at the same time, the protocol needs to be clarified in key respects to ensure discretion is exercised in a way consistent with the rule of law. in recent testimony for the house, i offered specific recommendations for how the military commission's act of

2006 should be amended if commission proceedings wish to comply with relevant law. i ask that testimony be incorporated into the record here if that's possible. >> without objection. >> thank you. in addition, i think it's critical that any new legislation regarding military commissions, include a sunset provision or other structural mechanism to ensure that the commissions are strictly limited in purpose and duration. such structural limitations are essential not only to bolster the commission's already tarnished legitimacy but to ensure their constitutionality. as the supreme court has consistently recognized, our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under article three. in keep with this constitutional presumption, the extent to which the supreme court has approved the use of article one courts has been extremely limited. military commissions had historically been courts of necessity, not efficiency. recognized only in a limited set of circumstances. the only one of which this

relevant here is when commissions are in the words of the supreme court, incident to the conduct of war. in this respect where a new commission system -- whether because the offenses charged are not war crimes under international law or because the commission itself appears to extend its mandate beyond events occurring within the period of war as recognized by international law it may be more vulnerable to challenge the exceeding congress' authority under article one. absent clear of formal recognition in the commission's statute that military commissions cannot exercise jurisdiction over every crime committed at any time, congress may not only exceed its constitutional authority, it will have created, in my judgment, a standing national security court by another name. finally, let me say a word about the administration's proposed protocol for selecting where guantanamo cases should be prosecuted. any such protocol some reflect two central principles. first, military commission

trials may be considered -- may only be considered at all in those cases in which prosecutors have probable cause to believe that a specifically defined war crime has been committed and that evidence admissible in the commission forum will sufice to sustain a conviction. in the absence of either one of those two findings, none of the other considerations identified in the protocol. the gravity of the alleged conduct, the relative efficiency of the formum, foreign policy concerns and so forth are relative to the prosecutorial decisions in choosing a forum. independent professional prosecutors must arrive at clear and affirmative answers. that is probable cause of a war crime and evidence sufficient for prosecution before the protocol is even invoked. second, the administration stated presumption in favor of prosecution in article three courts must include guidance that makes it clear for prosecutorial decisionmakers why and to what extent it exists and how it should be implemented. such a presumption is consistent with and compelled by the

structure of our constitution which recognizes article three courts as the default setting for criminal trials of nonservice members. it is also essential as a policy matter to limit the strategic damage continued use of military commissions seen likely to cause. the president has wisely recognized that guantanamo has had the efeskt expanding the bafs al qaeda recruits. just as with the guantanamo detention system in general, the taint of unfairness extends to the process in particular. whatever tact gal gain may be achieved, will bring a strategic cost of conducting trials under a system many will likely continue to see as lacking legitimacy. as the president himself appears to believe, the united states has already suffered significant strategic losses in the global struggle against terror. it is in our national security interest to minimize those losses going forward. the single biggest threat to the legitimacy of the military commissions is the danger the commissions will function in perception or reality as a second class form of justice for cases involving evidence insufficient to prevail in

prosecution and a traditional article three setting. adhering closely to constitutional standards of evidence and fiercely protecting prosecutorial evidence, these are indispensable safeguards. thank you, and i look forward to your questions. >> thank you very much. mr. edney? >> thank you, chairman cardin, ranking member kyl, for the opportunity to come and address this important issue today. you have my written statement. i just wanted to highlight a few key points before we get started with the questions. after the president's may 21st speech to the nation, it's becoming clear that there's an emerging consensus now between two administrations that some form of military commissions is necessary for the prosecution of members of al qaeda, specifically the ones at the guantanamo bay facility. at the same time in fewer than six months, the president's deadline for closing guantanamo will arrive. we have not heard from the president's task force on how

that will be handled. but what we do know that there are more than 220 detainees at gun taun mow today. just about 15 fewer than there were when this administration started. and almost inevitable that al qaeda detainees, maybe hundreds of them, will end up in the united states. some will be here, held as enemy combatants. some will be tried in federal court. some will be tried by military commission. and that's the topic at hand today. an issue that congress will have a significant role in. i want to address briefly the considerations -- the legal considerations that would help in choosing between federal/criminal trials and military commissions. first that choice needs to address classified information. classified information is the forefront of any trial involving al qaeda operatives. our nation's military intelligence services have conducted significant surveillance, especially against the highest level individuals in

the al qaeda organization. these are the people we're talking about down at guantanamo. and they've done this to protect the american people. so classified information, any way you look at it is going to be either using the government's case or be relevant to what the defense wants to say. the fundamental principle here we hind the military commission rules on this is to avoid forcing the government into a very difficult choice between revealing classified members -- information to members of an enemy force during the time of armed conflict and holding them responsible and accountable for violations of the law of war, including the 9/11 attacks on this country on the other hand. the military commission's act allows for an important check by the judge on the reliability of underlying intelligence sources and methods. without revealing every intelligence activity behind the evidence. the same time the defendant receives every piece of evidence

that the jury sees. and he is entitled to all exculpatory evidence, classified or not, unless there is an adequate substitute for him to prepare his defense. these are special procedures for a continuing war. the rules and criminal trials identified by the classified information procedures act are not that. they aren't tailored to a continuing armed conflict. that law was passed for very different circumstances. if you go back at the -- look at the history of that act you'll see it. it was to try u.s. government officials for espionage. these people were walking repositories of classified information and we wanted an orderly system for the government to have notice when they intended to bring some of this classified information out at trial. if we're going to go down the path of trying dozens of guantanamo detainees in federal court, we need to take a critical look at these rules that are now in federal court under the classified information

procedures act. it is no answer to say that federal courts are ready because of a law passed 29 years ago for a very different purpose. second, there has been significant discussion today, and is the primary focus of the testimony earlier, about how we sort guantanamo detainees between federal criminal trials. the administration says there will be a presumption of federal court trials unless the evidence is too weak or the classified information is too important in which case a move back to the military commission system may be considers on a case by case basis. this approach, i believe, may be a threat to the integrity of both the military commission system and the federal criminal justice system. this is something senator feingold pointed out earlier. it sends a message that the rigorous procedures in federal courts for criminal trials matter until they matter or, in

other words, they'll be followed until they make a difference in the particular case at which point we'll move to another system of justice. for military commissions, the message would be that those proceedings are a type of secondary justice, not to be respected. and i think we can have no doubt when it comes to defending the military commission system in the appellate process that that message will be taken by the judges that review it. a better approach would be to designate a class of cases for one system or another. the quality of evidence in any particular case aside. try all members of al qaeda who are aliens who have violated the laws of war and military commissions. justify that choice on history, tradition and the necessities of armed conflict. or try all of those individuals in federal courts. but the least preferable option is to sort them on the strength of the evidence to come up with a compromise solution, a sliding

scale, that applies to particular cases as we -- as we move through the process. third, congress needs to consider the legal consequences of where military commission trials are held. and this is something that is an impending issue for this body. because unless the president changes his deadline, these new military commission trials will be held in the united states, not in guantanamo. and when the military commissions act was passed, while that was a possibility it was not at the forefront of the consciousness of this body. one legal consequence of holding those trials in the united states is the scope of the constitutional rights that will apply. the more constitutional provisions applicable, the more options are available to congress in developing rules for these trials. in the united states, territorial arguments against the application of certain constitutional provisions would be wiped away once these military commissions come here and that will have all sorts of

complications. everybody on the panel today talked about the need for some rules for hearsay. there's a broad consensus on that. but i think those would be the first to fall if the trials were held here in the united states in full constitutional guarantees apply to those proceedings. if the confrontation clause applies, the supreme court's recent decision in craw fortd versus washington would suggest that a safety valve for hearsay depend on reliability assessments by trial judge would be invalid. another consequence would be taking away congress' exclusive discretion as to whether guantanamo detainees are released inside the united states. the power to allow entry into this country rests exclusively with this body under the constitution's naturalization clause in article 1 section 8, clause 4 of the constitution. and a court would be extremely unlikely to order entry after a military commission acquittal. but once guantanamo detainees are here, that's no longer a power that congress will have. it will be up to other branches.

thank you again for the opportity to testify. i look forward to the panel's questions. questions. >> well, thank you all three fo courts, they're going to be here in the united states. i think it is clear that we can safely detain and incarcerate

these individuals here in the united states. i don't really think that's an issue as we've been pointed out by my colleagues. there are hundreds of convicted terrorists currently in our prison system. the issue, mr. edney, that you raise is that if they are found to be not guilty or there's insufficient evidence, or they're here, whether it's a military commission or a trial, article three court, what do you do if they're not convicted or one day they complete their sentence, whatever that sentence might be. and they are released. do we give up our ability to require they leave our country? i don't think we do. i thing immigration laws are such that there is no responsibility for them to be allowed to remain in the united states, particularly when they have violated any of the standards that's we would allow someone to come into our

country. so i think we can ask them and require that they leave our country. i think congress has spoken to that. we're waiting to hear the administration's plan. and we expect that that will be addressed somewhere in their plan as to what ultimately would happen to individuals who are either found exonerated by the court system or have exhausted their sentence here in the united states would be the administration's position as to where they ultimately would be released. i don't have the answer to this. i think this problem is solvable. but i want -- if you want to comment on that. any of you want to comment on that, that's fine. >> i'm happy to comment on that. i think it's an important point that you raised about the ability to remove them from the country after an acquittal. they are aliens, after all. and you can develop procedures that would reduce their standing

to stay in this country. i think it's important to keep in mind one of the challenges are reducing the guantanamo population has been finding countries willing to take these people because of the assessment of those third countries of the dangerousness of those individuals. perhaps more importantly, finding places for some of these individuals, where they would not be mistreated. once they're in the united states, we actually have a legal obligation under the torture statute and under the convention against torture not to return an individual to a place where he or she will be mistreated. >> part of our commitment. i acknowledge that. but let me take issue with one point. i've talked to representatives from other countries concerning this issue. and one of the points they raised to me frequently is that, fine, we're willing to do our part, but is the united states

willing to take on a responsibility within its justice system? and i'm talking about nations in which there is no question they'd respect international human rights in regards to the manner in which they'd handle these transfers. so i think it is an issue that the united states has to be prepared to deal with. we are. we're transferring some now for trial. i think that's going to happen. but i think you raise a legitimate concern. may well be that we need to change the law to deal with what happens in the eventuality that these individuals ultimately are released from our criminal justice system, strengthen the laws in regards to deportation. >> if i could just -- >> change it before they arrive. because once they are here, rights will attach and it will be difficult to take them back. >> we might have to. >> i would differ slightly. i agree, absolutely with your premise. this particular problem is

solvable. i think it may already be solved. and that is- let me just highlight two distinctions. first of all, the -- the u.s. obligations not to send anybody back to a country where they are likely to find torture, it attaches already in guantanamo bay. and whether they stay in guantanamo or come back here, we are under that obligation. and i think the evidence of that is reflected in the fact that the last administration, like this administration, thought they can't send the guantanamo bay detainees back to places like china or wherever to face prosecution. so those exist whether they are in guantanamo or whether we bring them to the united states. so that doesn't make a difference. with respect with what to do if a detainee is brought to the united states for trial is acquitted or convicted and then serves his sentence, under immigration laws, as i understand them as they exist,

that person is certainly deportable. not only are they deportable. we can continue to detain them while deportation proceedings are pending. so there is, in my view, simply no risk that a federal court would then immediately order the release from supermax facility in colorado. >> i think that's the concern of people in this country. there's the concern that the terrorists that are currently at guantanamo bay could be released in the united states and i think that risk is not there if we follow the procedures we're talking about. >> the alien removal statute is that authority that ms. pearlstein is speaking about. allows them to detain foreign nationals who presented national security risk. there's no specific time limit by law on how long the government can detain people for national security reasons. there was a supreme court case a

few months before 9/11 where the court even made about or the necessity to detain foreign nationals longer under the alien removal statute where there were national security grounds to do so. >> if you go back to that case, they held that question open. i don't think we know how the supreme court is going to rule on that, and the zadvidas decision places a heavy thumb on releasing people who can't be deported within six months. so that's a risk we're running, constitutional litigation. >> may i just make this observation? i think there is no opposition at all in congress to making the laws as clear as can be that terrorists are not going to be released in the united states. i think we need to strengthen the law. i think that issue can be

handled. i think i agree with ms. pearlstein. i think it's already clear. but if we have to make it stronger, we'll make it stronger. assuming we go through trials, assuming that there are detainees that become incarcerated in the united states, either awaiting trial or during trial or after conviction, ultimately, if -- there comes a time when they are eligible to be released, they'll not be released in the united states. one way or another, they'll not end up in our country. they're not citizens of america. they have no rights in that regard. let me turn it to senator kyl. >> let me ask, and if you can, a yes or no answer. on this last point. do you agree that it was senator cardin's statement right now that if the united states brings someone from guantanamo to an article three court and for whatever reason they are at some point released -- are deemed no

longer imprisonable, the case is dismissed, their sentence has been served, whatever the situation. at that point, there's no constitutional issue having been brought to the united states and being in the united states that the united states could hold them indefinitely in the event that we couldn't find a place to send them. that there is no constitutional issue, no constitutional right for that detainee to be released after a period of time. do you agree with that? >> make sure i understand the senator's question. would there be a constitutional claim by someone in the united states having served his sentence, for example, with the existing immigration laws that allow us to hold an individual who is deportable? >> if it's a foreign national, i

don't believe -- if it's a foreign national, i don't believe the individual would have a credible claim that he cannot be detained under the alien removal statute. the boundaries of how long that detention can take place may be questionable. >> do you agree with that, ms. pearlstein? >> i agree that it's an open question. you know, without any legal authority, to continue to detain somebody, they just need to be deported and we have no place to send them. could we continue to detain them beyond six months, a year,them, detain them? the supreme court has never occasion to rule on that particular question. when it left the question open, it said it may be that terrorism and security cases are an exception and this is a case before 9/11. >> your view? >> i think there's a substantial risk, senator, that they would have a constitutional claim for release in the united states and if it is a constitutional claim

that it's -- we can pass all the legislation in the world and we can't do anything about it. >> right. thank you. can you edify us at all on the statements made earlier that there will be three convictions in the military commissions out of guantanamo? what are the reasons for that? >> well, the -- and i go over this somewhat in my written statement that there's a long history behind this. when the military commissions really got started in earnest after captures they got started in about the 2003, 2004 period. and they were immediately caught up in constitutional challenge and stayed for almost three years. well over two years. resulting in the supreme court's decision in 2006. then it took time for the congress to respond. to pass the military commissions

act. develop rules under the military commissions act which weren't completed until january 2007. through yoman work by the executive branch and the congress. an of that, charges started to happen and by january 2009, nearly 24 people had been charged by military commission under the mca. even in that period, there was at least seven or eight months that was held up in jet another jurisdictional challenge that got resolved in september 2007. so because of all the higher court litigation, the military commissions really haven't had a chance to get working until the very end, until they were suspended on the day after president obama was inaugurated. >> are you familiar with how many of guantanamo people, that is to say, alleged enemy come bants detained at gath tan no

have been detained or successfully convicted? >> could you rub that by me again? >> how many of the detainees have been successfully convicted under article iii? >> none. i listened to senator durbin's commentary on this. you know, there have been a lot of people that have been convicted in arl iii courts of terrorism offenses. the people of guantanamo are a little bit differently situated. we have now al qaeda leadership. and one feature about al qaeda leadership without telling anything that should come as a surprise to anybody is that they're heavily surveilled and makes things awfully complicated with trying them. they are really in a class by themselves. add on top of that many of the prior cases to come in the time of continuing armed conflict and

protecting the country and be on the offensive against a terrorism organization. >> i had a question. you quoted the president's statement at existence of guantanamo likely created more terrorists around the world than ever eliminated. i was intrigued by the president's allegation and i sent a letter to general jones and asked him for factual support for the statement. i haven't received any response from the administration and since you referred to it i wonder if you could provide some factual support for the statement or quantify how many or who you are referring to. >> i'm not sure that that was in my statement but i'll say to the senator that it's been my observation of talking to people in the intelligence community and even i had the opportunity in saudi arabia 18 months ago to meet some detainees released from guantanamo then in a saudi jihadist halfway house program,

if you will, to speak to them about what had led to the radicalization, what had helped radicalization, what had helped to form them as á@@@@@ @ @ @ @ k the basis of the president's statement is what you're asking. you know, obviously i don't have any personal knowledge of what the president in particular was basing his statement on.

the reason i believe the statement is several fold. and i would caution it's difficult to quantify. we don't have any way of having any knowledge of what the worldwide population is of al qaeda members currently but the evidence i found most persuasive in this respect were at least threefold. first is testimony in the last few years by people like alberto marrow and senior leadership of the military who said on the battlefield in iraq that was at the time in particular the two single things they thought were putting the troops most in danger were guantanamo and abu ghra ghraib. that's one piece of evidence and the individual testimony of those folks are sort of on the front line i found quite telling. >> the assumption is that people withholdn who wouldn't have other been

recruited is the system is rigorous and decided to object by becoming terrorists? >> i don't think -- i think the short answer is -- >> that's a bit of a stretch, isn't it? >> no. >> what standard of justice does somebody in saudi arabia test the american standard against to reach the conclusion that we're not fair? >> i think that's a bit of a misstatement or a mischaracterization, i would say. the arguments they were making and if you look on, you know, jihadist websites, recruiting websites, the pictures on those pictures are pictures of abu ghraib and guantanamo bay. i don't think they're making an argument about -- >> i apologize for interpreting but what that would suggest is anything they object to about our western way of life we should compromise because it might be a reason for them to recruit each other. >> absolutely not. >> good. i'm glad you agree.

>> i disagree with that statement. >> i'm glad you do. >> i would say they're in so many respects completely wrong but we don't get a choice in the united states what the enemies decide to do. what we can do to the extent possible and i think in this case, the case of detainees and trial process is incredibly possible to minimize the risk of what we're going is going to make us more enemies than we already have. >> let me just raise one or two points very quickly. first, in regards to use of article iii courts with terrorists in the united states, there's been no effort -- there was no effort made by the previous administration to use -- to prosecute detainees at guantanamo bay under article iii courts so the numbers raised earlier dealt with terrorists who were apprehended outside of guantanamo bay, some americans, some nonamericans successfully prosecuted under article iii

trials. i want to just ask that -- a question. if you have a person at guantanamo bay today who is not eligible for a military commission under the war crimes issues, so it's a -- there -- could be tried under article iii or military commission and you have a -- the evidence to proceed either way you want to, what do you think should be the preference? should we try that person in a commission or try that person in an article iii court if you have the true options one way or the other to we believe successfully prosecute that person for criminal actions? what's your reference? and why? >> my preference is a general rule of thumb to bring the cases to article iii courts except for policy reasons i believe they belong in a military commission,

cases involving -- >> the reason why? >> crimes against humanity. >> i excluded this. >> my preference for the article iii forum is i believe it holds us to the highest standards. it confers the greatest legitimacy. it is an enormous educational tool by virtue of the constitutional right to public trials for the illumination of the underlying evidence regarding the conduct at issue. it produces a result that i think stands the test of time. our courts are familiar with applying the rules for evidence, procedural rules to novel sets of facts. we have a body of history to rely upon over the last ten years going back before 9/11 in the cases starting in the southern district of new york and coming through my old district. we don't have to reinvent the wheel each time. >> ms. pearlstein? >> as a policy matter which is how i understand your question, it should be for article iii

courts for the reasons i was getting at a moment ago in the statement. with the prosecution of article iii courts, you get the benefit of a successful almost always successful prosecution without any of the strategic downside that is the forum and the new commissions will be better and generally it's still perceived as a second class system of justice. there's a tremendous amount of work to be done to overcome that perception and reality. i think we are on the right track now but in the meantime there is no more powerful tool for securing the long-term tension of terrorist suspects than prosecution in article iii court. >> mr. edny? >> it is hard to say i have a policy preference because i'm really just used to giving legal advice on this question. i think my legal advice on it would be the following. if the premise is right, that's been recognized by two administrations now that you

need some military commission system for some members of al qaeda to hold them to account for their crimes against the law of war, i think it's important that you think very seriously about putting all alien members of al qaeda who have violated the laws of war into that military commission system because what you can't have -- i just -- i do feel this relatively strongly. you can't have a situation where you go through the military commission system when a federal court trial in a particular case gets too hard. i think there's lots of history, lots of tradition, lots of very strong arguments for using military commissions for a class of individuals, members of al qaeda during the continuing time of armed conflict to hold them accountable for the violations of the laws of war which i don't think it's -- i don't think it's possible to argue that the september 11th attacks, for example, weren't a violation of the laws of war and part of the

armed conflict against the united states. >> thank you. senator kyl? >> i think this is an intriguing argument. if the claim and all three of you made this point one way or another that you don't want to be accused of a double standard in effect, of what mr. edney talked about that the article iii cases are great until they become too hard, until they're very protections would preclude a prosecution and then you turn to the second class justice. clearly we want to avoid that kind of construct here. and so mr. edney's suggestion is rather than a case by case analysis which necessarily will hang essentially on that question, that you ought to decide in advance some are appropriate for one and some appropriate for the other. now, contrast that with the fact that, of course, one of the justifications for military commissions is that you do not

have to deal with some of the classified information that would be destructive to the national security and so on. let me just ask you, mr. laufman, does mr. edney have a point here that to some extent you're almost conceding that military commissions are a second class kind of justice if you start out with the presumption that you should start with particular iii prosecutions? >> well, i start out with that presumption only with respect to the cases that i feel is a policy matter don't belong in military commissions. there are some categories of cases that i believe belong in military commissions and might agree that the moussaoui case could have been brought -- >> if i could intervene. you would agree that there are some cases you ought to just put off in a corner and say these

are military commission cases irrespective of the case by case analysis but then the analysis for a large number of remaining cases? >> there are some cases for policy reasons that properly belong in the military commission. >> right, okay. but then as soon as you start doing the case by case analysis, and most of that will hang on how easy or how tough it is to get the prosecution, won't it, then don't you get into this dilemma that mr. edney discussed? >> there will be tough judgments, there's no question about it that have to be made. those kinds of judgments are made whether to bring criminal prosecutions. >> so let me just ask you this. suppose you're responding to an intellectual argument rather than a sort of recruiting argument that miss pearlstein was talking about earlier, somebody criticizing our system and says your system is bad because, you know, you say article iii except when it's too tough and then revert to the military commissions and you

would defend a case by case analysis of which one to go by saying what? >> i mean, it depends on the specific facts of the case and these are very fact intensive cases. you know, what is the admissible evidence in this case? what can the government meet the obligations under the principles of federal profession? you know, can it sustain a conviction? >> all of those -- excuse me again but for all of those get to how easy it is to get the prosecution. >> well, if you begin with that presumption in favor of article iii prosecutions, i think it is propelling you down that road. >> i agree. i think that was part of mr. edney's concern or question. >> but i'm not troubled as a policy matter if we begin from the position of doing everything necessary in and appropriate to protect national security, if we have to in some cases send some cases to military commissions to ensure that bad actors receive justice in an appropriate forum,

about which there can be no controversy of legitimacy, i don't have a problem with that. >> so your response is a practical one, yes, it may be that one could argue we're relegating this situation to a second class situation, but you respond by saying, first of all, let's not second class. we have a will the of good procedures built in especially with the legislation proposed and there are some things which do deserve to be protected above all? >> that's right. i don't know that it's necessarily fair to refer to the military commissions as a second class -- >> i agree. >> -- system of justice. it is a different system of justice with a rich history which is discussed at length here today. >> yeah. mr. edney? >> maybe i could just put a finer point on this. if given the choice between the senate's resolution -- >> yeah. >> -- that was passed the other day to say that this entire class of individuals, alien,

uneligible should be tried by military commission and the -- and on the one hand and on the other hand, i think we have to go with the senate's resolution. and this is really not just because of both during the military commission system but protecting the integrity of the federal criminal justice system. it cheapens the system where the protections are cast aside on a case by case basis. this is something the supreme court thought a lot about in considering the constitutionality of civil commitment proceedings. in a series of supreme court cases. where state pros pose we should be able to detain somebody civilly if they're dangerous. the supreme court said you can't use it as a safety valve to the criminal justice system not really because of the civil commitment proceedings but because it hurt it is criminal

justice system and i think what this committee needs to keep in mind evaluating the proposals of sorting the individuals into various buckets. process ongoing right now. >> it is an interesting question. just let me ask you all of you this last question. we talked to the first panel of whether if you start from the presumption that you should go to article iii courts of necessity you're going to increase the requirement for giving miranda warnings much earlier in the processing of these detainees. now, the answer from the first panel seemed to be that, no, because you have to start with the assumption that the interrogation is going to be initially for the purpose of national security and only after that has been accomplished do you then confront the question of now what do we do with this

person who could be tried in article iii courts? that's the presumption. so that perhaps the miran@@@@@@r information, criminal justice based policies like miranda. a case i talked about, he was held by the saudis many months.

the fbi wasn't given access to him for many months and then september 2003, a special team of fbi agents went in just for the purpose of conducting an intelligence interview. what we do as prosecutors later, there was nothing to use from that interview but when i went over there to talk to saudi officials and hoped to have a crack at him, i knew i had to have a miranda warning with me. it didn't affect what had gone on before. it wouldn't have affected the attempts for additional information from him afterward but the minute i came in as a prosecutor or agents with the idea of collecting evidence for use in a criminal prosecution, then we have to have miranda in mind. >> if i could just add to that just a bit, there are two critical points of tn miranda front. the first is as spike bowman told me and he used to be fbi counter terrorism director senior person in the fbi, if somebody doesn't want to talk to

you, they're not going to talk whether you mir anodize them or not. if you pick them up on the battlefield, you can't lawfully coerce them into talking to you but the existence of miranda or not doesn't make a difference. secondly, in his experience, the vast majority of detainees end up talking to you anyway if you have an effective interview or interrogation set of techniques. so the fear of miranda as the end of okay si wags of information is substantially overstated. the second thing i would say is the courts have already held in the course of terrorism prosecutions brought since 9/11 and before that it is possible to, you know, if somebody is held by a foreign intelligence service, by our own intelligence service where they're initially detained, for example, even up a period of some weeks and interviewed and for intelligence

purposes, that information is not necessarily voluntarily given but once you after that period of weeks give the mira a wa da warning, the information can be admissible in courts. this is a case of an imminently solvable problem. >> mr. edney? >> senator, i would make three quick points about this. first, i think if the presumption is in favor of federal criminal trials and i were providing add stris the department of justice, i would advise before any statement to use in court that you'd want to mirandize it. there's an interesting thing in testimony of mr. chris on this, he wants a voluntariness standard and if i were providing legal advice regarding that, i

would advise statements for people that we would send to military commission because it's a same inquiry. miranda came out of volunteerness standard. the court decided it was too difficult to manage and wanted a rule. i think that's where we would be headed in the military process commission. we would look to the information of the detainee as to the right of an attorney and stop talking and various things like that. second point that i would make, i think this is an important one, the -- if you're moving to a system where you don't want to have the detention of enemy combatants to the end of hostilities which is kind of the old system, right, but instead you want to use federal criminal trials and military commission trials for the vast majority of these cases for incapacitation purposes, right, making sure

that an initial statement from a detainee is done under conditions of voluntariliness becomes a crucially important for the military and they are pulled in two different directions. first, gather intelligence from the individuals to save their lives and, second, the look down the road where we don't have to release these folks in a year or two because a statement wasn't properly taken in the battlefield. that's a very dangerous conone drum to put our nation's armed forces into. so i mean, these considerations need to be kept in mind between the choice but also in the rule that mr. chris is urging upon this committee with regard and the armed services committee more specifically with regard to military commission trials. >> thank you very much. >> well, i want to thank all three of you for your testimony. i think it's been very helpful. these are not easy issues and

will continue to be of interest to the judiciary committee as well as the armed services committee and every member of the united states senate. we are not going to solve the issue today and we are waiting upon the administration's detailed reports on the closing of guantanamo bay which we won't have but i think today's hearing prepares us to be better prepared as we go forward to developing the policies necessary to protect the security of our country. chairman leahy was unable to attend today's hearing. he had other conflicts but asked that his statement be made part of the record and without objection it will be and the committee record will remain open for seven days for additional questions by members of the committee which i would urge the witnesses if such questions are prepounded to please respond promptly and with

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we will be measured by the progress we see and promises we keep. we will be pressured by whether or not the standard of living of the middle class improves and those aspiring to the middle class can get there and stay there. that's what we are about. today's news is a glimmer of hope that we are putting the brakes on this recession, lifting ourselves back out of that deep hole we were dropped into, and we will get through this and when we get on our feet we will be a much stronger

nation than when we went into this recession. so, ladies and gentlemen, as my mom would say -- actually, she got it from my grand mom -- keep the faith, keep the faith. and every time she would say that's walked out the door my grand pa would say, no, spread it. well, ladies and gentlemen, i don't want to exaggerate the progress we have made, but it is real, it is concrete, these are building blocks that are necessary to get to the place we have to get to do what we need to do. so, i want to end by thanking y you, thanking you for your work, thanking you for your commitment, and telling you how badly we need to you maintain that commitment and passion. because we have to build a new economy in the 21st century, not just restore the old economy. we have to build a new economy.

so everybody, everybody, has a shot. ladies and gentlemen, thank you very, very much and may god bless you and may god protect our troops. thank you very, very much. [applause] [captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute]

>> today join the conversation on race relations with juan williams, author of "eyes on the prize" and npr and fox news analyst. >> now a hearing on the current hurricane season and ways to improve research efforts and preparedness held by the senate

commerce and science committee. it is two hours. >> good morning, welcome to the commerce committee. on this panel we are joined by a distinguished group of experts. the assistant administrator for oceanic and atmospheric research, dr. richard spinrad, leads the office at the national oceanic and atmospheric administration. he is going to discuss noaa's efforts research for predicting, modeling and forecasting hurricanes and the agency's work with coastal states to assess vulnerability to hurricanes and to try to create something that we all desire, which is a

disaster-resistant community. dr. kelvin druggamier is the associate vice president for research and regents professor of meteorologist at the university of oklahoma. he is testifying on behalf of the national science board's task force on hurricane science and engineering and he will discuss the task force findings in their report, "hurricane warning, the critical need for a national hurricane research initiative." and dr. gordon wells, a research associate in the center for space research at university of texas at austin. dr. wells has worked on

synthesizing satellite imagery, g.p.s. signals and the best hurricane and storm surge models available to support coastal evacuation. his testimony will address the current state of science, the data needs of stakeholders, as well as future needs to improve research for predicting, modeling and forecasting hurricanes. mrs. leslie chapman henderson is the president and c.e.o. of the federal alliance for safe homes, a national nonprofit dedicated to strengthening homes and safeguarding families from disaster. her testimony will address how model building codes can improve the resiliency of structures and reduce the economic cost of post-storm recovery efforts and

a lot of her experience comes from the experience that florida suffered after the megahurricane, hurricane andrew in 1992. mr. frank nutter is the president of the reinsurance association of america. he currently serves on the board of the international hurricane research center, the council of american meteorological society and board for center for atmospheric research. he will address the economic impacts of hurricane planning, damage and recovery on vulnerable communities. so, we thank you all. and, dr. droegemeir, i want to thank you because you left your vacation early to come back to

testify today. so, thank you very much. i could say all of the obvious things about the destructive force of hurricanes, the fact that we have this extraordinarily vulnerable coastline that most of the population of america is along the coast. certainly that is the case with regard to my state of florida. and we can see this is an enormo enormous do enormous cost not only to the insurance companies, people and the united states but to the u.s. government and, therefore, to the people of this country. it is also deadly. 2,000 deaths in the united states since 2003 account for

approximately 66% of the insured losses due and account for 66% of the insured losses due to natural hazards. hurricanes and other tropical cyclones. and you just think about it, it was the hurricane of 1928 that drowned 2,000 people around lake okeechobee, and what a turning point in our history that was. and here we are experiencing a similar kind of thing with regard to the number of deaths since 2003. that is hurricane charlie, a category three. it covered up virtually the entire state of florida.

and that was the first of four in 2004. within a six-weeks period four hurricanes hit florida, which virtually hit every part of the state within that six-weeks period. of course, that is a typical kind of destruction. i'm going to insert the rest of the introductory comments and i would call on our ranking member of our subcommittee. >> thank you very much, mr. chairman. i want to welcome and thank all of our witnesses. i'm very much looking forward to the testimony. i'm here for a pretty obvious reason, too, just like you are, a natur a natural interest in these phenomenons, representing louisiana. the best known of a hurricane to hit louisiana recently is katrina, which caused enormous devastation beginning with the death of over 1,800 people.

but like florida, louisiana has experienced multiple hurricanes in the last few years alone. right after katrina we had rita, which was very serious that particularly hit southwest louisiana and southwest texas. then hurricanes gustav and ike since then. i won't go through all the statistics, all the devastation, death and dollar loss, but clearly, particularly in places like louisiana, florida, the gulf coast, but our other coasts are vulnerable as well. i think there is a clear need for advanced and increased research in many areas. areas like understanding and predicting hishg intenurricane intensification and size and reducing the uncertainty associated with where and when they make landfall. understanding air and sea

interaction. predicting storm surge, rainfall and inland flooding. improved observations. also in the broad category of impacts. i think we need to understand better the interaction of hurricanes with engineered structures, the economic and social impact of hurricanes and mitigation measures. interaction of hurricanes with natural ecosystems. a third big category is preparedness and response measures. certainly we have a lot of additional work to do there assessing and improving the resilience of the built environment. disaster response and recovery. and certainly i'm working very hard with many members regarding a much more streamlined bureaucracy of fema. human behavior and risk planning and evacuation planning. evacuation is absolutely critic critical, particularly to lessen and mitigate any impact on

humans and any possibility of human deaths. so, i look forward to all of your comments and thein these ar areas and look forward to continuing on the track of significant and aggressive research in all of these areas using the resources at noaa and across the federal government. >> senator martinez, my colleague and co-sponsor. >> you almost called me martinez. >> i know better. i'm from florida. >> i could take that from somebody else but not you. we are pleased to have you here and glad to have this hearing on something that is so important to the gulf states for sure but we think really to the whole country. my time in the senate i have been very focused on this and worked closely with my dear friend and colleague senator nelson as well as others in the

capitol to look for ways that we could get more expertise, more research, get some of the very brightest and best in our science and government, a.c.cadc institutions to better understand hurricanes. from 2002 to 2007 hurricanes caused approximately $180 billion in losses compared to $14 billion if earthquakes yet there is not a nationally targeted research program for hurricanes like the one for earthquakes. they have killed over 2,000 people the last six years and with a majority of the nation's population near the coast it is critical we begin to have more coordinated and targeted strategy for dealing with hurricanes. there is no doubt that in a state like florida this is very much connected to the future of our state as we look at the economic damage that can occur, but also the problem we have had with insurance which i know we

will address today. i should also say as a neighbor to the caribbean basin and to central america, that so much damage and devastation has occurred in that region the last several years and it does seasonably because it is an area that is prone to these events. so the research we can do will not only be of great benefit to our country as we do more mitigation it will save billions in after-storm cost but it will be of help to our neighbors and countries that have less wherewithal to deal with these problems. thank you for being here. >> gracias senador martin. >> touche'. >> what we will do is not read a bunch of boring statements that people just read. what we are going to do is i want to have a conversation, i

want to have a dialogue. and i want you to bring it out. what i will do is ask a couple of questions here. we won't have a time limit. then i'm going to throw it to you, senator vitter, then to you, senator martinez. dr. droegemeier, from 1987 to 2006 hurricanes caused $137 billion in insured losses, whereas earthquakes caused $19 billion in losses. yet, hurricanes received substantially less money in research funding than earthquakes. can you share with us why this might be? >> in fact, senator, let me thank you and your colleagues for holding this hearing and your support and recognizing the importance of hurricanes to our

society. you laid out some of the challenges we face, the impacts and tremendous loss of life so i thank you for that. to your question, senator, that was in fact one of the things that motivated the national science board to look at the notion of why we don't have a concerted, focused effort on hurricanes. not in the sense that we are competing with the earthquake community but we really look to them as a role model saying they have done a great job of mobilizing assets, the intellectual capital and talent and attacked the problem in an incredible way. hurricanes are very devastating and why do we not are that so we set on a course by putting together a thoughtful plan, a really focused plan and balanced approach for addressing the hurricane problem not just as a weather problem -- which has been the case for a long time -- the hurricane is a weather-driven social signs infrastructure economics policy

problem all the way from putting sensors in the field to collect data like for convection, taking the data and putting them in models, predicting when and where hurricanes will form, and providing estimates to those quantities, looking and evacuating, mobilizing people for a predisaster preparation, landfall, post-response, rebuilding. so it is a problem that is unique and is different than a earthquake problem because of its totality. the totality of what it encompasses from sensors to predictions and recovery. so what the signs board did recognize tag fact we put -- recognizing that fact we put together a plan for a national initiative to look to the earthquake community as a good example, a role model, yet taking it in the context of hurricanes and saying what research do we need, who needs to be involved, what are the key challenges and priorities. what needs to come first?

as lawmakers you may be interested in knowing how predictable of hurricanes. fundamentally how predictable are they? if we're 90% to predicting hurricanes, which i don't think we are, and that last 10% will be an enormous cost it might be not the best way to invest. but if we are quite a distance and a lot of room to go and progress to be made, then we ought to be investing. i think it clear we are not near the limit in predictability of hurricanes. but that is an important question that vexes the community. so it is a very important question and we really address that in our report to look at putting on track a very sustained, focused effort on hurricanes not just as a weather problem but bringing in the social, behavioral signses, engineering, ecological sciences in an integrated way where they

talk to one another, models communicate with one another. we are looking to predicting the hurricane as a complete total problem for society, not just as a weather problem. >> all of your written statements will be entered into the record so that we have that basis of information. mr. nutter? >> senator nelson, i wanted to add to what dr. droegemeier said. if i can provide for the committee a chart showing exactly what has been mentioned here and that is a relatively steady number of geophysical events and convection and dramatic rise in the number of climatological events. it seems to me that what should be driving it agenda is that our population and the values at risk at increased in extraordinary amounts in hurricane prone areas and if we

were not in the past providing enough research money to support hurricane research we have every reason to do so as the population has shifted to areas of greater risk. in my prepared statement there is data to support what the insured values have risen to be. >> your chart will be entered in the record. senator vitter? senator martinez. >> implemented to -- maybe i should give each of the others that have not spoken a chance to speak, give you a chance of getting your thoughts in and i will come back with questions. >> and you might discuss whether or not you think we are making progress on reducing hurricane impac impacts. dr. spinrad? >> i would like to follow up on

a particular aspect that was alluded to in that the hurricane forecast and prediction capability is a comprehensive set of solutions within noaa which includes our national weather service. we have a responsibility for developing improved capability on the front end, especially on the prediction and forecast and providing warnings and information that emergency managers, local managers, can use. i found it fascinating that the image you showed of hurricane charlie represents the culmination of capabilities in terms of satellite support, in terms of of enhanced models and observations, in terms of our ability to work with coastal managers through the national ocean service and on the front end the research that goes into that capability to provide and improve forecasts. we have made dramatic improvements the last several

decades in the track forecast. where will that hurricane make landfall? not as dramatic in the intensity foreca forecast. the consequence of this is that emergency managers will, through a precautionary approach, take the forecast with respect to intensity and make assumptions about increased intensity because all too often as well many of these hurricanes rapidly intensify as they make landfall. i had the personal experience of flying through hurricane ike last year as it passed from cuba to the shore and intensified over a very short period of time to a category two hurricane. why does it do that? how does it do that? when does it do that? we have recognized that in order to do our part in the comprehensive forecast and response capabilities that dr. droegemeier alluded to we

need to enhance our research investments to improve intensity forecasts and most notably for those rapidly intensifying storms. as a result, with an emergency appropriation supplemental last year we were able to dramatically increase the investment on the research and predictive capabilities. this year in our f.y. 2010 budget we have increased our request to develop high resolution models, work with our partners, which is a fundamental aspect of the research initiative that you have put forward, so we work closely with the national science foundation, with the u.s. navy, nasa, we work closely with the minerals management service and with the department of homeland security to develop new techniques to enhance that forecast. for example, this year, in about a month, we will deploy high

altitude balloons in the spawning area for hurricanes to see if that information we get before the hurricanes develop, even as they are just tropical depressions, can that help us provide improved forecasts, especially for the intense itity forecast? that coupled with increased investments especially in association with the national science foundation on some of the social sciences -- how does one interpret the forecast? we may have the best forecast ever and i would use katrina as an excellent example. it was one of the best forecast but we know the devastation. why do people respond the way they do? how can we help people manage in uncertainty and improve our products and services? so it is both the physical sciences of improving the forecast or observations and models and the social sciences associated with interpretation that is the noaa responsibility

embedded in that comprehensive enterprise that was alluded to. >> one thing i would say in that regard is it seems like when the forecast gets enhanced because of the lack of predictability and intensity you end up with a forecast that doesn't meet the expectations so we got ready for a big storm and it was a big nothing, then we got another warning and it was a big nothing, then it is the story of the third one you don't get prepared for or we ride them out and it was going to be a four and it turned out to an two. i think people develop -- particularly in places lick florida -- like florida that this is no big deal. and with the enhancement part i remember flying with senator nelson i think it was wilma over naples and the damage was surprisingly mild. and as we came across the everglades and that fort lauderdale the damage was horrendous. and that storm intensified after

it made landfall over the everglades. i think it was wilma. >> wilma actually hit an unurbanized part of the state where the counterclockwise winds hit the coast, was down in the 10,000 islands where there is no civilization there except pan grov-- except mangroves. but across that moist everglades it kept up speed and by the time it got to miami and fort lauderdale it did some real damage. >> wilma was a record setter in the meteorological community with respect to intensification, which is exactly why we have emphasized trying to focus on the rapidly intensifying storms. another point is we need to work hard to make sure the public understands, for example, that our two and three-day forecasts

are now as good as the one-day forecast was, say, a decade ago. and for the most part what we have seen is people have enhanced confidence in that 24-hour forecast. the other issue is how does one interpret the uncertainty associated with that forecast? as i think all of the members of the committee understand, when we put the forecast out we include a cone of uncertainty? what does that mean? we need to develop the tools so people understand how to interpret that. >> dr. wells? >> i want to agree that this is important to study the intensification. i want to say in the texas experience we have dealt with two hurricanes, rita and ike, in which the track was not very well forecast until the last 24 to 36 hours before landfall.

let me give you a concrete example of the impact that that has. we can all agree that it is necessary to evacuate nursing homes, assisted living centers, citizens that are home bound that have physical or sensory disabilities that live in the area that would be affected by storm surge and high wind. we could do this in a couple of different scenarios. we can wait until the last 24 to 36 hours before tropical storm force winds reach the coast, in which at that time we have a reasonably good track prediction. but if we have that, if we have an overevacuation as in rita we could have them trapped in traffic, with feeder bands we could have flooding which could also cause them to be trapped, or they would have a very long and tiring evacuation, this fragile community. or we could do as we do in texas now. we can take that period between

72 and 48 hours before landfall and attempt to evacuate that community at that stage. now, when we do that, in the cases of these storms with poor track predictions, we overevacuate and place in jeopardy these very fragile citizens that, if we had as good a forecast that we now have 24 hours, if we had that at 48 to 72 hours out, we would have a solution to this dilemma. right now there is no good solution. >> it is amazing how much better the tracking has now progressed to, but interestingly you used, dr. spinrad, the example of charlie. i flew not into charlie but above charlie in in your noaa g-4, and that was down when it was still south of cuba in the caribbe

caribbean. and by the time it got to the peninsula of florida it was headed straight for tampa bay. and all of a sudden all of our predictions, we had no idea. it suddenly came in with a left hook and it turned sharply to the right and it went right across charlotte harsh hintitti punta gorda straight on. people had evacuated from tampa bay and come to the holiday inn at punta gorda and they were at ground zero. then it kept right up the spine of the state up the peace river through polk county and orlando and came out just north of the kennedy space center. so, all of our predictions -- and aboby the way because of yo g-4 you figure you got a 15% better accuracy. is that correct? >> the accuracy over the last

decade is, i believe, even higher than 15% attributable in part to the g-4. but i would say largely attributable to other observational techniques and probably mostly because the improvements in the models. >> what are you going to do if the g-4 is down for maintenance or because of an accident? >> we have several contingencies. first and foremost we are relying on our strong and codified relationship with the air force. they have agreed to provide the c-130 gap filler capability. >> it can't get as high. >> part of this alludes to the work we have done with the department of homeland security using the high altitude balloons. the experiment this year would suggest we can get similar kinds of observations from those arrays of balloons. also, we can increase the drop

sond density with the c-130 and our p-3 hurricane hunters. so we have a series of steps to accommodate and additional observational capability we are testing this year i'm convinced will provide enhanced observations. >> so you are not worried about the column of air from the max altitude of the c-130 and the p-3, which is somewhere in the range of 30,000 to 3,000 feet, you would miss that column of air at the top of the hurricane which is from 45,000 down to that 33,000? >> that is why we are trying techniques using the balloons. that is why some of our modeling capabilities should allow us to do some extrapolation from the top of the profile of 9 p-3 and c-130 flight profiles as well. but i can't tell you what the

consequence of not having that full set of observations will be absent the observations we get from the ambulance. >> senator martinez, please continue. >> i'm very interested in the issue of mitigation. that is something we have had to build and i'm wondering if that is not something you could share information with us on. >> certainly. i think integration is the key word. the notion of having a system where we connect the dots between social, behavioral, forecasting, engineering, all the different science to get a system in is montgomery county to our ears. -- is music to our ears. building codes help us. those homes we rebuilt after katrina and charlie, mitigation we look at as more of something to help with the unfortunate problem that we constructed most of our homes without the benefit of the modern building code.

so we have to have both. the problem is we don't. we have pockets of success in building codes in places like florida, although i would point out that even florida had a very big loophole in the panhandle until 2007. we have pockets of success with mitigation programs. again, florida, south carolina, soon mississippi have put programs in place to harden existing pre-code older homes. their activities of things like enhancing roof attachments, better high-wind shingles. unfortunately just as we've got these new emerging programs they are desperate for funding, having to make their case very hard. now they find themselves competing with things lick weatherization. -- like weatherization. so as an organization and 100-partner-strong movement of people looking to get the end

result out to communities, and we need the forecasting and tracking but if we could get to the point where the structures are sound that is minimized because we can safely shelter in pla place. families outside the flood zones can do what they do in bermuda, batten down the hatches and stay put and safely so. they don't have to evacuate, they don't have to go to shelters and be fed and cared for. so when we look at the new mitigation programs and hardening that we would love to see a national model because those programs work. the florida return on investment has been communicated three to one. south carolina has reported homes that are in the program are getting 23% on average savings on insurance, 29% on average on savings on energy because if they do the windows. but with the focus on weatherization what we have to stop doing is just looking at

one piece. we can't pit green building against disaster. we need to be whol holistic. you have to look at aparticulars, wind -- attics windows, doors. if we expect homes in coastal communities and weatherize them, we are replacing the windows, let's also put in an impact-resistant wind cows so t dollars spent for weatherization are not wasted when those homes that remain vulnerable are swept away. the building code system we have is slept in terms of creating model codes but it is not fast enou enough. applied science and research informed building codes could help resolve some of the debates that occur unnecessarily. simple things lick taking additional nails and putting

them into a roof decking often mean the difference between a home that is completely destroyed and one that is not. but so often that is not done and roofs are destroyed and communities are destroyed as a result. so, our focus -- and it is incredibly encouraging to hear that you are putting forth a program that would integrate across all of this, because the key is information sharing. our engineers across the academic community and the states that are typically hit like texas, florida, south carolina, are doing phenomenal work. they are discovering things like a simple handful of nails, other affordable ways to strengthen homes. but we have to get those into a system so it is always done. with research behind that, i think that is where we have succeeded. when you talk about the investment in earthquake research, it is almost made a lot of the debate about the specific building practices moot

because people know this is what we have to do. so, ditto on wind. if we can get past the debate whether things work because we have put enough resources behind the findings the building code will deliver that prediction each time. the breakdown between the developer, the code adopter, the trained building official, down to the citizen who doesn't even know to ask, is extraordinary and i think that is why we lose communities. >> i will never forget, in the aftermath of hurricane drew in 1992, in which all of the habitat for humidity homes survived when so many of those other subdivisions were blown away. that people would come up to the head of habitat because he had a habitat sticker on his briefcase and say thank you, thank you and the press would ask him well, why did the habitat homes

survi survive. and his answer was inexperience. and they would say inexperience? what do you mean? he would say we do it with volunteers and instead of driving two nails they would drive 10 nails and the home survived. >> makes sense. i was going to ask you about another type of of housing which mr. floridians rely on which is mobile homes, manufactured homes. when i was there we tried to improve the national code for prefabricated homes. and i think that they have had very good results but we still inevitably, with a tornado in central florida last week and a number of homes were lost. inevitably they are old mobile homes. and obviously the older ones are not very survivable but i think we have made progress. i wonder if you could comment on that because this is a very -- at a time when affordability is a big deal this is a very

affordable way to house. >> this is another way for research to help solve the problems. the pre-hud before the regulations were enhanced you have to evacuate from those holes. the structure of the new manufactured home is so much better. but we would still ask those folks to evacuate because they can't resolve the attachment issue. and we also look, traditionally we have held out the manufacturer of the mobile home as the affordable option. there are other options and there are modular and other things that can be done that we can overcome attaching that home to its foundation. that is where we get into trouble with wind. this is another place that is rife with confusion and lack of information about whether works and what doesn't. when it comes down to it as a family, we need to be confident that wherever we dwell is safe to stay.

and our rule of thumb is, if you don't know which building code or which regulation you are manufactured to in that case or the site the home is built to, how can you possibly make a decision that could be life or death on behalf of your family? with respect to the manufactured housing, i think we are very decentral i decentralized so we don't have good information and until we resolve attaching those homes to the foundation one good wind storm -- and it doesn't have to be a tornado -- consistently brings death and injury. and that is unacceptable. >> and, really, property loss, too. human amounts of property loss because typically they are just blown up. so the mitigation part not only is about life and limb but about property. >> that's right. and in my longer version of the commentary in the record i have a 22-state analysis on the economic impact of building codes and mitigation. it is clear, for example, i think i pulled texas out but i

have all of the 22 states. in texas the ample annual insured losses that are expected are around $1 billion. if you just put it modern building codes you reduce that by 40%. if you put in code plus, which is just some of the things that are absent from the code today, you could reduce that down to $200 million per year. so, taking the average annual expected insured losses from $1 billion to $200 million, your insurance challenges becomes very clear that you can remove them over time. and i think that analysis is very compelling and i think has gone a long way to get traction around this discussion. i would like to think so. >> senator vitter. >> thank you sh, mr. chairman.

specifically what research gathering tools and programs would be put at the top of the list helping noaa achieve the goals of improvement? what tools and programs would you put at the top of the list in terms of having positive impact? >> senator, we think about the categories of research investment that will contribute to improved forecast. and if a very porous definition those would be observations and modeling and what we call data assimilation. getting the observations into the models. so, for example, on the observational side, one of the things we feel is very important is characterizing the nature of the heat content in the ocean as the storms are coming across the ocean. so, improving our ways of finding the total heat content,

how much heat is in the full ocean is one observational technique we need to improve. also, low-level winds. we've got high-level winds, upper-level winds right around the storm, but for years we have not been able to make observations of the lowest-level winds, and there are indications that they may be particularly influential in how the hurricane is structured. so, what we have started doing in that regard is launching unmanned characteristic, small unmanned characteristic in areas we would not want to put p-3's and c-130's and g-4's and we have had success in those observations. on the modeling side, if you talk to most of the modelers they will tell you our real challenge is increasing the resolution, bringing the size of the model dprgrid down to five kilometers, maybe one kilometer. as you might imagine, that

demands much, much more computational horsepower. so, we have spent a lot of our resources of late investing in high-performance computing. on the data assimilation side, this is really where we work very closely with our academic rech researchers, who have improved the capability to absorb these observations, including radar observation from the p-3 aircraft, in real time into the models so that with a lag of less than an hour or two we can have the observations going through a super computer such as the one we use it texas, into the national hurricane center to improve what we call the forecast guidance, the model output that the forecaster, the critical human in the loop, can then take to develop that forecast. so, it is models, observations, and data assimilation are the critical components in the

research investment. >> on the other end of the process in terms of the end result, the goals laid out in the hfip for improvement. what do you see as being the most eminently achievable, reducing tracking error, extending forecast lead time, increasing forecast accuracy? what area do yu you expect to s the most improvement? >> we have seen dramatic improvement in continuing to improve the forecast on the track accuracy. just last year, by using the super computer in texas, we were able to bring the track down on one or two storms that we were studying significantly. i would say that extending the forecast of and by itself is directly doable right now.

the real parenthetical aspect of that is extending the forecast with some accuracy. so, we will make immediate improvements on track. we saw that last year. we have started to make improvements on intensity. we have put the goal in the hurricane forecast improvement project rather high. it is a high bar to reach to improve the track and intensity forecast by 50% over the 10-year period of what we call the hurricane force improvement project. we will probably reach it sooner. >> for dr. wells, the simulations you have run, what do they suggest about the relative effectiveness in terms of protective coastal infrastructure of softer options like wetland restoration versus

harder ones like structures and how those interact and build on each other? >> we are using the same super computer that noaa is using for the forecast in the hurricane model. we are using it in an advanced circulation model. that allows us to increase the resolution from 50 to 20 meters so you can represent the built infrastructure on the surface. what we have done recently, the team that has been led by professor clint addendason and h -- clint dawson. they took the data from hurricane ike and run simulations of the landfall as the storm occurred historically and they have taken a concept called the ikedike which is a

sea barrier that would be built along about a 60-mile segment of texas coastline. all of galveston island over to the peninsula and they have run both of the simulations with and without the dike. they have also taken ike and created a mighty ike, a category four ike and run the same simulation so that you can see on the hard option side of using things laike dikes and storm gates what the consequences might be. there are also the soft options. wetlands restoration and some development limitations. they are seen as the opposite. you have to pick one or the other. what we can do with the super computer modeling is see what

best combination would work for different areas of the kecoastle and may be coastlines that would work for one particular landfall scenario that could fail or create problems for another. the wonderful thing about the super computer modeling is we can simulate hundreds of storms, use historical storms, storms that are purely our design, and we can test the different protective measures that could be taken, both built infrastructure and natural restoration processes and see which works best. >> also for dr. wells, you mentioned in terms of foreca forecasting storm surge to help with rescue operations that in addition to natural geographic data a full data base should taken what you term social geographic data to help with that in particular.

from your experiences with ike in particular, give us some examples of that. what would be particularly useful, how it would be useful on the social geographic data side. >> i should first say that i and my teamwork in the state operations center. we work with state elected leadership with the governor, with the chief of emergency management of the state, jack cawley. we are constantly interpret being the model forecast and taking runs from the super computer and looking at the impact geography. now, what we see in the physical side, the high magnitude impacts, are not necessarily the areas where you want the first responders to go. i will give you a concrete example. if we had ground zero being in east beach, galveston island, we have an area there that is developed with half million

dollar beach houses which are second holmes, very high-rent condominiums, areas that are not primary dwellings, areas where certainly the residents would have a means to self-vacuevacua. that might well be the area you would anticipate to have the highest magnitude impact. six miles away in the interior of the city of galveston you have a number of social factors. you have elderly in neighborhoods who are living in older housing stock. you have single-parent low-income wage earners who may not be able to leave the island because of their job requirements. you have people that are, again, they have a medical special need. you have a number of factors that are social factors. and you need to be able to overlay the impact from the physical impact that particular

geography with the distribution of these populations within the community that have special risks. we need to be able to evaluate and come pile that as a distribution -- compile that because where the two overlap, social and physical risk, that is the threat geography. that is where we need to do search and clear operations before impact and where you want to be able to get in at the very earliest moment where you can safely re-enter the region with the first responders to check those neighborhoods to see that those people are safe. >> that is all i have right now, mr. chairman. >> mr. nutter, we haven't forgotten you. i want you to comment on how better construction methods and the stronger building codes that mrs. chapman-henderson mentioned can save lives and property and

reduce the economic losses. since you are in the reinsurance business, how does this improved forecasting and modeling also help bring down the economic loss? >> there is no question, as has been mentioned by several people, that improved forecasting where people can be out of harm's way will save lives that will not necessarily save property damage unless we do something to mitigate these properties. let me cite a statistic. losses from hurricane andrew in 1992 caused about $20 billion it today's dollars of insured losses. that would have been reduced by 50% for residential property and 40% for commercial property if the destroyed and damaged structures were built in compliance with the 2004 building code. to mrs. chapman-henderson's point, we know how to do this

and it has real value to t. to cite another statistic, homes built to the modern florida building code experienced a 60% rouks of actual property losses and 42% loss of severity during hurricane charlie in 2004. i don't think there's any question that improved research is important, but improved research needs to be tied with the societal impacts of hurricanes, not just the physical characteristics of the hurricanes but that interaction with the built environment as we are saying but the natural environment and buffers. dr. wells' point about the ability to evaluate natural habitat as buffers as well as built buffers is an interesting way to look at this. and research focus on that would be of immense value to the people who live in the high-risk areas. >> i recall also a huge part of

economic loss that we've gotten better at preventing is after the hurricane has come through and people have holes in their roo roofs, by fema being ready so that it can get plastics in there so people can cover up the holes, that you can save an enormous amount of economic damage because if there is a hole in your roof the rains come after the hurricane is gone and that then causes all of the insurance loss inside the home. you want to comment about that, mr. nutter? then i want mrs. ch mrs. chapman-henderson to comment. >> that is a clear value to immediate response and preparation for that immediate response. the government has not always been fairly prepared or even fairly criticized for its response, but the reality is

those who might come in to help mitigate those damages need access to those areas which include debris removal and communications capability. so, economic that would focus on first responders to prioritize them would reduce the insured losses. >> dr. spinrad i'm going to test your forecasting ability here. we have had la nina, the cold pacific waters, and what your bi bulletin dated a week ago says el nino has arrived and that is the warming of the pacific waters which tends to lessen the activity in the atlanta hurricane. now, thus far we haven't had any activity in the atlantic on hurricanes -- i mean of any significance. so, tell us what is going to

happen in the atlantic? >> first i would point out out that my meteorologist friends in the weather service are fond of pointing out that they are in charge of marketing, not production. i'm and oceanographer. the outlook that we provide every year at the start of hurricane season from which the information that you have got comes, this year it did take into account what we thought was the emergence of an el nino and that was developed several months ago. now we have better information about the emerge generals of el nino. so the first point is that outlook did include that. the second is our mid season outlook will be out august 6, which will presumably take into account the enhandlesed observations -- enhanced to observations and more accurate characterization of el nino.

you are right that the statistical indications of el nino that it in fact actually increases the upper level wind and, as a result, if you will, knocks off, shears off, the developing storms and diminishes number and intensity of them. so, based on that physics one would assume you would see a reduced probability. as you know, this year's outlook effectively said a 50% probability of nine to 14 named stor storms. on august 6 we will identify how that has changed. i would simply point out that the paucity of named storms this year doesn't of and by itself give any indication of what the season will look like. i remind you hurricane hurricane, a, the first named storm, occurred in late august. the latest a named storm, the first