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An Appropriate Role For Military Commissions

An Appropriate Role For Military Commissions

Testimony Before the Senate Armed Services Committee on Military Commissions Given by Deputy Secretary of Defense Paul Wolfowitz, and William J. Haynes II, DoD General Counsel, 325 Russell Senate Office Building, Washington, D.C., Wednesday, December 13, 2001.

Senator Levin: Good morning, everybody. The committee meets this morning to receive testimony from the Department of Defense on the department's plans to implement the president's military order of November 13th, 2001.

The president's military order relates to the detention, treatment and trial by military commissions of certain non-citizens in the war against terrorism. Secretary Rumsfeld has been designated by the president to develop orders and regulations to carry out that military order. Last week the attorney general referred many questions from the Judiciary Committee about rules and procedures for the military commissions to the Department of Defense.

The military order was issued by the president in the aftermath of and in response to the horrendous terrorist attacks on September 11th of this year. The Congress on September 14th authorized the use of all necessary and appropriate force against those nations, organizations or persons that planned, authorized, committed or aided those terrorist attacks or harbored such persons or organizations.

The United Nations Security Council, at the urging of the United States, reacted to those terrorist attacks by calling on all states to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks, and stresses, in the words of the United Nations resolution, that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable.

On September 11th, the North Atlantic Council released a statement that, among other things, said: "Our message to the people of the United States is that we are with you. Our message to those who perpetrated these unspeakable crimes is equally clear: You will not get away with it." For the first time in its history, NATO invoked Article 5 of the Washington Treaty, which states that an armed attack on one or more of the allies in Europe or North America shall be considered an attack on them all.

Today, NATO AWACS aircraft are flying patrols over the United States to assist our armed forces in protecting the United States. Heads of government and state have visited the White House to express support for the United States and to pledge their cooperation to bring to justice the perpetrators, organizers and sponsors of the terrorist attacks. In light of the extraordinary support from the international community, support which I believe reflects a recognition of and appreciation for the United States' core values of democracy, freedom, tolerance and respect for due process, I believe that we should work to ensure that the manner in which the military commissions are carried out will not undercut either those core values or that international support.

We should also work to ensure that the way in which the military commissions operate does not jeopardize the standing of the United States to object to unfair conduct by military tribunals of other nations towards U.S. citizens; for example, the secret trials without access to state's evidence by Peruvian military courts.

Finally, we should work to ensure the military commissions will operate in a manner that doesn't cause other nations, including our allies, to refuse to extradite suspected terrorists to the United States because of the alleged lack of due process provided by such commissions.

I believe there is an appropriate role for military commissions. They have a long history going back, in one form or another, to George Washington. But they must be used wisely. They must provide for the basic rights for individuals tried before them so that we do not violate our fundamental values of fairness and due process, values that this nation has always stood for, and values for which American service men and women have risked their lives.

A careful reading of the president's military order raises a number of issues. The scope of overage is broad. Since it includes both past and future acts, there's no apparent time limit, and it has no definition of "terrorism." The order says that it applies not just to, quote, "violations of the laws of war," close quote, but also to violations of, quote, "other applicable laws," close quote.

The attorney general, in his testimony before the Judiciary Committee last week, said it would apply only to individuals who committed war crimes. White House Counsel Alberto Gonzales made a similar statement. But the president's military order reads otherwise.

There are also many questions about the conduct of the trials before the military commissions. Before I get into some of those questions, I want to clarify one matter.

A number of people, the White House counsel included, have equated military commissions with our system of military justice, including courts-martial. This committee has jurisdiction over the Uniformed Code of Military Justice, which is found in Title X of the United States Code. There is a difference between the high level of protections afforded our military personnel tried before courts- martial, where the evidentiary rules and burden of proof are virtually identical to those in our federal district courts, and the procedural protections for individuals tried before military commissions. Speaking of them in the same breath creates an enormous impression about both.

The United States Code itself provides that the principles of law and the rules of evidence that are generally recognized in the federal trial of criminal cases should apply to military commissions only so far as the president considers practicable. President Bush has already made an affirmative finding in his order that such is not practicable. But what he does require is that the rules and regulations issued by the secretary of Defense shall, quote, "at a minimum, provide for a full and fair trial." Close quote.

The secretary of Defense's task, then, is to establish the rules and procedures to ensure a full and fair trial. One of our objectives today is to explore what some of those rules and procedures should include. For instance, does it include the accused's right to present witnesses?

Does a full and fair trial provide for the presumption of innocence? Does it provide for the accused's rights to select his own counsel or to have assigned counsel, for those who cannot afford one? Does a full and fair trial necessitate a unanimous vote for the imposition of the death penalty? Under President Bush's military order, conviction and sentencing can occur on a two-thirds vote of a majority being present. In a five-person commission with a majority of three members present, that could require a vote of only two of the members of the commission. Can that be tightened by the secretary of Defense, should he determine to do so?

Does a full and fair trial provide for habeas corpus? The attorney general told the Judiciary Committee that habeas corpus would be available to persons tried by a military commission sitting in the United States. White House counsel Gonzales has written that the president's order, quote, "preserves judicial review in civilian courts," close quote. But the president's order itself states that, quote, "an individual shall not be privileged to seek any remedy or maintain any proceeding in any court of the United States or any state thereof," close quote. We need to hear how these seemingly conflicting positions are going to be resolved.

Some have suggested that it is aiding terrorists or diminishing our resolve or eroding national unity to discuss the need for fundamental due process in military tribunals. Quite the contrary. What this country is about what the president's announced intent to bring terrorists to justice was about are values of due process and justice.

I hope the secretary of Defense will welcome constructive discussion of the issues that he must grapple with in designing procedures for military commissions. Public discussion about how best to dispense justice can make the outcome stronger. It will help assure that military commissions will stand the test of time, so that we don't look back with regret at how we handled these critical issues in the crucible in which we find ourselves.

The bottom line for me is this: Military commissions have a role when our nation is attacked and civilians are deliberately targeted, in violation of the laws of war. If the rules adopted by the secretary of Defense provide for a fundamental level of due process, it will be recognized as such by the civilized nations of the world. These military commissions will not only dispense prompt results, but just results, which, in turn, will enhance the status of the United

States as the standard-bearer for democracy, respect for human rights and human liberty.

Senator Warner.

Senator John Warner (R-VA): Thank you, Mr. Chairman. Your bottom line, I think, frames the issues before us. And I would only add that the president of the United States, who has brilliantly and courageously executed this military operation to date, will continue to see that his Cabinet officers, primarily the secretary of Defense, who is represented here today by a very distinguished deputy secretary of Defense and general counsel -- they will formulate those regulations in such as way as to preserve fundamental due process, to which you refer, and which is absolutely essential if we are to continue in this war against terrorism and have the vital support that is necessary of coalition nations joining in these efforts.

This is a clear example of the constitutional authority of a president of the United States in the time of war. It goes way back into the history of our nation. Many other presidents, faced with comparable situations, have exercised their constitutional right to establish these tribunals.

Now, the Department of Defense, thus far, is proceeding, in my judgment, very carefully, very thoroughly, to devise these regulations, consulting with other departments and agencies of the federal government, and reaching outside of government to receive the benefit of counsel from those who have had long careers in law and who have spent their lifetime ensuring the due process for others. I hope at some eventual time, the secretary of Defense can share with the public those many distinguished scholars and others who have worked with you in this challenge.

The use of the military commissions and court-martials (sic) are most widely accepted venues for enforcing violations of the law of war -- a body of law virtually unknown to the average citizen here in our nation but, nevertheless, well established in international law and within our own jurisprudence. The events of September 11th, that have killed some thousands of our innocent -- and I repeat, innocent -- American civilians, and many others from over 80 nations, were acts of war against the United States and against the whole civilized world.

United Nations has endorsed the United States' right to use military force in self-defense, NATO has, and Congress has authorized the use of force.

We are in a war, and we will follow through and conclude these military operations at some time in the indefinite future. But in the meantime, it is incumbent upon our president to begin to lay the foundation for bringing to the courts of justice those that are identified as perpetrators of these crimes.

Mr. Chairman, we are privileged to have on this committee several members of the Judiciary Committee of the United States Senate. That committee has done a good deal of work on this issue, four hearings. On our side we have Mr. Sessions, and I'm going to ask that my statement be incorporated in the record, and yield a few minutes to him; with my concluding remark that this nation is faced with perhaps the most serious challenge in contemporary America, to balance due process, freedom, civil liberties, all of those things we hold most dearly, against the need to bring to justice, in a sense of fairness, those who are identified as the perpetrators of this crime and series of crimes. We will achieve that, I'm confident.

So Mr. Sessions, if you'd take the balance of my time. Thank you for your work on this subject.

Senator Jeff Sessions (R-AL): Thank you, Mr. Chairman -- Mr. Ranking Member. And I thank for your remarks and those of the chairman for his excellent remarks, because we're talking about some matters of real importance.

I thought it would be valuable, Senator Warner, that we recapitulate some of the things that have occurred already. There have been four hearings in the Judiciary Committee, one before the full Judiciary Committee, in which Assistant Attorney General Chertoff of the Criminal Division answered questions concerning all matters dealing with the nation's response to these terrorism attacks, including military commissions. Then we had a subcommittee meeting with Senator Schumer, and I'm the ranking member, and it dealt solely with the military commission.

I think we had a lot of extreme comments early on about what was right and legal and proper. I think after that hearing, all of us concluded that there was a firm constitutional and historical and legal basis for military commissions. And even liberal professors, such as Laurence Tribe and Cass Sunstein both affirmed their belief that a military commission is a legitimate way to deal with illegal combatants in a time of war.

Senator Feingold also had a hearing -- on issues relating to the terrorist attacks -- that I participated in. And then we had a full committee hearing of about four hours with the attorney general, in which he answered all kinds of questions dealing with this entire matter. I felt like after that, that many of the concerns had been allayed. Many of the fears that some people initially expressed had been satisfied and that the procedures that were ongoing, when clearly studied, were the kind of procedures we can be proud of.

So I think at this point, the military commission is legitimate. I think it's appropriate that the Department of Defense be working on the procedures to conduct those. The UCMJ that we authorized in this Congress specifically gives the president the power to set the procedures for a military commission, and ultimately, they will have to be fair. The Department of Defense will have to be sure these trials are conducted fairly. But I think we would do well to recognize that this Senate really isn't in a position to draft specific procedures for military trials under these circumstances. We should let the Defense Department do that and evaluate them as they go forward.

Thank you, Mr. Chairman.

Senator Levin: Thank you, Senator Sessions.

Senator Kennedy, of course, is also on Judiciary, and, chatting with Senator Warner here, we thought it would be appropriate also for Senator Kennedy, should he desire to have a brief opening statement, as well -- and then we're going to go to our witnesses and then come back to eight-minute round of questions.

Senator Edward Kennedy (D-MA): Thank you. And first of all, I think any of us who are meeting today are once again mindful, as our two chairs have said, about thanking you, Mr. Secretary, and through you, the military forces of our country, that are doing such a superb job. And I think all Americans feel that way, and it's just one more indication of -- expression of that feeling.

Secondly, thank you very much for being here on this topic.

Just -- as a member of the Judiciary Committee, and now here on the Armed Services Committee, the two committees' interest in justice and also the pursuit of those that are violating our laws are best, I think, illustrated by this morning's announcement, where the decision by the Justice Department to go ahead with Zacarias Moussaoui and try him in a federal court -- that's in the Judiciary Committee -- military tribunals are here. We're talking about a person that is going to be charged with the kinds of crimes that threaten the lives of American citizens. That decision is a clear expression of the administration's about competency in the federal courts and where all the rights and protections will be accorded to the defendant in that.

We are now considering the military tribunals, and we're going to be interested in what protections are going to be there in terms of the -- those that will be under the military tribunals, and defining how the law -- how the administration is going to make the judgments between one and the other.

I think that this decision by the Justice Department is enormously significant, and at a time -- in your comments, I'd hope you would express your own views, whether you supported that decision and how you evaluated that decision, what the considerations were in your own mind about why that ought to have gone to the federal courts, as compared to going to the military courts.

I think these illustrations of the military tribunal, which will be testifying today -- the decision to try one of the leading terrorists in the federal court illustrates, at least, the challenges that were going to be faced.

And we're -- be enormously interested, as one who has prime interest and responsibility in both of these areas, to tell us your views about this.

Thank you, Mr. Chairman.

Senator Levin: Thank you, Senator Kennedy.

And now, Secretary Wolfowitz, we turn to you. Thank you for coming. And again, we all join in Senator Kennedy's sentiments about the extraordinarily brilliant manner in which this matter has been handled militarily. We thank you. We thank the secretary, your staff, for your total commitment and focus on prevailing, and, of course, the men and women of our military for their superb, superb operations.

Mr. Wolfowitz: Since thanks are due here, I think thanks are due to the committee and to the Congress for the great support they've given to the Defense Department over the years, and particularly in recent months in this war effort. And as everyone has indicated, I think most of all we as a nation are indebted to the brave men and women in uniform who have been conducting this operation brilliantly and bravely and, so far, quite successfully, although there's a lot more work to do.

Senator Levin: Could you pull your mike just a little bit closer to you?

Mr. Wolfowitz: Okay. Does that work?

Mr. Chairman, I'm not sure I've ever delivered a statement that is the testimony of the secretary of Defense as well as myself, but that is what I'm doing this morning. Secretary Rumsfeld had very much hoped to be here this morning, but unfortunately, he had an NSC meeting and was prevented from attending. He and I prepared this statement, which he had intended to deliver this morning and which I would now like to present to the committee. But I would like to have the record reflect that it is a statement from both the secretary and myself.

Also, I have with me the general counsel of the Department of Defense, Jim Haynes, who, unlike myself, is a lawyer and can answer some of your questions much better than I will be able to do.

Mr. Chairman, on September 11th, Americans found their nation under attack. Terrorists hijacked civilian airliners, turned them into missiles and used them to kill thousands of innocent Americans -- men, women and children -- as well as people from dozens of nations. Today, three months after the attack, the ruins of the World Trade towers are still burning and bodies are still being pulled from the wreckage. Over the weekend, the remains of 20 more were recovered -- five firefighters, two policemen, and a group that had been trapped in a stairwell as they tried to escape the collapsing tower. Their families will now be able to bury them, but many hundreds of families who lost loved ones, mothers and fathers, husbands and wives, sisters and brothers, sons and daughters, still have not been able to bury their dead, and possibly never will.

It is still difficult to fathom the enormity of what happened on September 11th. As time passes and the fires finally burn out, Americans will eventually recover from the shock and horror of what befell our nation that day. But those who are responsible for our national defense must not lose sight of the fact that these are not normal times. We have been attacked, we are at war, and we must take the steps necessary to defend our people and to protect them from further harm.

The September 11th attacks were acts of war. The people who planned and carried out these attacks are not common criminals; they are foreign aggressors, vicious enemies whose goal was and remains to kill as many innocent Americans as possible. And let there be no doubt: They will strike again unless we are able to stop them.

We have no greater responsibility as a nation than to stop these terrorists, to find them, to root them out and to prevent them from murdering more of our citizens. To accomplish that objective, the president is marshalling every tool at his disposal -- military, diplomatic, financial, economic. He is working to freeze the assets of terrorist leaders and organizations that sponsor and finance terror. He is working with foreign governments to shut down the terrorist networks that operate in dozens of countries across the world. And he has sent brave Americans to Afghanistan -- courageous soldiers, sailors, airmen and Marines who, at this moment, are risking their lives to stop the al Qaeda terrorist network and the Taliban that seek to kill our people.

This is not a law enforcement action; it is war. We seek to destroy or defeat our terrorist enemies so they cannot harm Americans. When coalition forces storm a Taliban compound or an al Qaeda safe house, they cannot ask for a search warrant. When they confront Taliban or al Qaeda or fighters in the caves and shadows where they hide, they are in combat. Their objective is to stop the terrorists and prevent them from continuing to threaten our country.

The U.S. military is doing this in Afghanistan, and they are doing it extremely well. But the terrorists who threaten us are not only in Afghanistan; they operate in dozens of countries, including the United States. They are and remain unlawful belligerents -- adversaries who attacked our nation in contravention of the rules of war. And the president has made it clear that we will hunt them down wherever they hide. When enemy forces are captured, wherever they are captured, they must then be dealt with. There are a number of tools at the country's disposal for doing so. One of those tools is the establishment of military war crimes commissions.

The president, as commander in chief, has issued a military order that would permit individual non-U.S. citizens to be tried by military commissions. As yet, he has not designated anyone to be tried by such a commission. He may do so; he may not.

To prepare for the possibility that he may do so, the Department of Defense is developing appropriate procedures for such commissions. We are in the process of developing those procedures. We are consulting a wide variety of individuals and experts inside and outside of government to discuss how such commissions should operate and how they have operated in the past. We are working to establish rules of procedure that will ensure, in the event the president decides to designate a non-U.S. citizen to be tried by a military commission -- and I would underscore that he has not yet designated anyone to be tried in this manner, and that it would only apply to non-U.S. citizens -- but should he decide to designate a non-U.S. citizen to be tried by a military commission, it will be handled in a measured, balanced, thoughtful way that reflects our country's values.

Military commissions have been used in times of war since the founding of this nation. George Washington used them during the Revolutionary War. Abraham Lincoln used them during the Civil War. President Franklin Roosevelt used them during World War II. During and following World War II, we did not bring German and Japanese war criminals to the United States for trial in civilian courts; we tried them by military commissions. In Germany, we prosecuted 1,672 individuals for war crimes before U.S. military commissions. Convictions were obtained in 1,416 cases. In Japan, we tried 996 suspected war criminals before military commissions, of which 856 were convicted. These conviction rates, you will note, are not out of line with normal, non-military commission outcomes; indeed, they are lower than the felony conviction rate in the U.S. federal courts last year.

When eight Nazi saboteurs landed on our coast in 1942, with the intention and purpose of destroying American industrial facilities, they were tried by military commission. Indeed, in that case, the Supreme Court upheld the constitutionality of military commissions. In the case of ex parte Quirin, the court ruled unanimously, in an 8 to zero decision, that the trial of the Nazi saboteurs by a military commission without a jury was indeed constitutional, declaring, in the court's words, "unlawful combatants are subject to punishment by military tribunals for acts which render their belligerency unlawful."

Further, the U.S. Congress also recognized the use of military commissions after World War II when it passed the Uniformed Code of Military Justice in 1950, which included statutory language preserving the jurisdiction of military commission.

So all three branches of the U.S. government have endorsed the use of military commissions.

Mr. Chairman, our ability to bring justice to foreign terrorists is critical to our ability to defend the country against future terrorist threats. Moreover, it is well established that a foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply to a domestic criminal prosecution.

Furthermore, there are a number of compelling reasons for using military commissions instead of civilian courts to try unlawful belligerents in times of war.

First, by using military commissions, we can better protect civilian judges, jurors and courts from terrorist threats and assure the security of the trial itself. Because of the ongoing threat from terrorists, the risks to jurors are of a kind that military officers are trained and prepared to confront, but that are not normally imposed on jurors in civilian trials. Indeed, the judge who handled the trial for the first World Trade Center attack, the 1993 attack, is still under 24-hour protection by federal marshals, and probably will be for the rest of his life.

It is also important to avoid the risk of terrorist incidents, reprisals or hostage-takings during an extended civilian trial. Moreover, appeals or petitions for habeas corpus could extend the process for years. Military commissions would permit speedy, secure, fair and flexible proceedings in a variety of locations that would make it possible to minimize these risks.

Second, federal rules of evidence often prevent the introduction of valid factual evidence for public policy reasons that have no application in a trial of a foreign terrorist. By contrast, military tribunals can permit more inclusive rules of evidence, a flexibility which could be critical in wartime, when it may be difficult, for example, to establish chains of custody for documents or to locate witnesses. Military commissions allow those judging the case to hear all probative evidence, including evidence obtained under conditions of war, evidence that could be critical to obtaining a conviction.

Third, military commissions can allow the use of classified information without endangering sources and methods. This point is critical. During the course of a civilian trial, prosecutors could be faced with a situation where, in order to secure a conviction, they would have to use classified information that would expose how the U.S. monitors terrorist activities and communications. They could be forced to allow terrorists to go free or to offer them lighter sentences in order to protect a source that is critical to our national security.

Do we really want to be in the position of choosing between a successful prosecution of an al Qaeda terrorist or revealing intelligence information which, if exposed, could reduce our ability to stop the next terrorist attack, at a cost of thousands more American lives? A military commission can permit us to avoid this dilemma. We can protect national security, including ongoing military operations in Afghanistan, while at the same time ensuring a full and fair trial for any individuals that might be designated by the president.

Again, Mr. Chairman, the president has not designated anyone so far to be tried by military commission. And we have not yet concluded or issued regulations or established rules of procedure. But we are at war with an enemy that has flagrantly violated the rules of war. They do not wear uniforms. They hide in caves abroad and among us here at home. They target civilians, innocent men, women and children of all races and religions. And they intend to attack us again, let there be no doubt. They are not common criminals, they are war criminals. We must,and we will, defend this country from them. Military tribunals are one of many instruments we may use to do so.

We are confident that we will develop a process that Americans will have confidence in and which is fully consistent with the principles of justice and fairness our country is known for throughout the world. We have the reputation as a nation for dealing fairly in these kinds of matters, and we will do so in this case.

We will bring justice to the terrorists and ensure that the American people can once again live their lives in freedom and without fear.

And Mr. Chairman, I believe this hearing and the views of this committee can be an important contribution to making sure that we achieve those goals, and we appreciate the opportunity to testify before you. Thank you.

Senator Levin: Secretary Wolfowitz, thank you.

Mr. Haynes, do you have any additional statement?

Mr. Haynes: Just a brief one, Mr. Chairman. Chairman Levin, Senator Warner, it is a pleasure to be here again before your committee.

The president's military order to the secretary of Defense is as serious as any the president gives as commander in chief. The secretary is determined to be deliberate and careful in implementing the order. He has asked me to assist him in framing the issues, surfacing the relative weights of the different considerations that would go into it. And he has asked me to work with others to help bring those very important issues, many of which you highlighted in your opening statement, to his attention for his decision. That is a principal reason for me to be here today, and I'm pleased to be back.

Senator Levin: Thank you both for your opening statements. They're very helpful indeed.

Senator Warner: Mr. Chairman, I just want to congratulate the deputy secretary, speaking on behalf of the president and the secretary of Defense, for an excellent, fair and balanced presentation. The bottom line is, the American people trust our president. And the question now, is the Congress going to trust our president to go forward exercising his constitutional authority, with really the input coming from the Congress, not to write the regs, but you will receive the recommendations that we wish to make and take them into consideration.

Thank you.

Senator Levin: We'll have eight-minute rounds, as I mentioned. We will proceed with the usual early-bird approach.

We will proceed with the usual early-bird approach.

Secretary Wolfowitz, when the attorney general testified last week before the Senate Judiciary Committee, while on the whole he referred most of the details to the Department of Defense, on some specific issues he made statements that I'd like to ask you about and see whether or not you're in agreement with.

The attorney general was asked, since the order gives the president or the secretary of Defense the authority to make the final decision, whether or not that means that the secretary of Defense or the president could reverse an acquittal of somebody who is charged with a crime, because by the terms of the order, it could be read that way. The attorney general said that he's confident that that was not the intention of the order, and I'm wondering whether you agree with that.

Mr. Wolfowitz: It's my understanding that was not the intention of the order. Do you want to add anything, counsel?

Senator Levin: Thank you. The attorney general was asked whether he believed that there should be appellate procedures under the order other than the president and the secretary of Defense -- in other words, appellate procedures by an outside third party -- because the order of the president appears to preclude that.

The attorney general said that he believes that the Department of Defense, quote, "has the authority to develop appellate procedures under the order," closed quote. And I'm wondering whether you agree that you have the authority to establish appellate procedures outside of the chain of command, in other words, outside of the secretary and the president.

Mr. Wolfowitz: Mr. Chairman, I'm going to ask the general counsel to address the issue of authority. But I believe that it's worth emphasizing very, very strongly here that we are proceeding very deliberately. It is nearly a month now since the president issued that order.

And as I believe everyone has observed, we have not yet -- he has not yet chosen to designate anyone for trial by those commissions. We are still working on the procedures. We are listening very carefully to a very wide range of views, some very distinguished outsiders. And I won't try to mention everyone, but to give you a sense of --

Senator Levin: I wonder, though, whether you could just address the question, because we're limited in time.

Mr. Wolfowitz: Okay.

Senator Levin: Do you agree with the attorney general that --

Mr. Wolfowitz: I believe we have the authority.

Senator Levin: Pardon? I'm sorry, you do or do not.

Mr. Wolfowitz: I believe we do.

Mr. Haynes: Mr. Chairman, the president's order specifically does provide for at least some review, because the president reserves the right to review the decision of the tribunal or designate the secretary of Defense to do so. The order also provides that the record will be reviewed, the record and the proceedings will be reviewed. So another form of that could be in the implementation of that aspect of the president's military order.

If I may go back to the first question that you had about reversal of acquittals, the question, as stated, supposes a particular form of decision-making by the commission or by the military war crimes tribunal. So the actual procedure for reviewing decisions of the commission are not yet formed.

Senator Levin: I understand that, but I'm wondering whether you agree with the attorney general that the department does have authority to develop appellate procedures under the order, outside of the review by the secretary of Defense or the president. Have you resolved that issue yet?

Mr. Haynes: We have not resolved the particular form, but the --

Senator Levin: Okay.

Mr. Haynes: That's the short answer.

Senator Levin: The attorney general told the Judiciary Committee that the tribunals would be subject to habeas corpus review to the same extent as in the Quirin case, that being for review of the constitutionality of the tribunal and whether the defendants were legally subject to the tribunal. But the president's order itself is very explicit. It says that "The individual charged shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or have any such remedy or proceeding sought on the individual's behalf in any court of the United States or any state thereof."

There seems to be a direct inconsistency here as to whether or not there is habeas corpus review provided between what the attorney general said, and indeed what I believe the counsel for the president said, and between the order itself. So my question is, do you agree with the attorney general? Was the attorney general right, or does the order govern the question of habeas corpus review?

Mr. Haynes: I agree with the attorney general. The actual order from the president is identical in that respect to President Roosevelt's order. The Supreme Court in that case determined that it had jurisdiction to review the case under those circumstances, and there's no intention to change that --

Senator Levin: All right, thank you.

Mr. Haynes: -- in this case.

Senator Levin: The attorney general was asked whether or not only war crimes would be tried by the tribunals, because the order states that the jurisdiction of the tribunals go beyond war crimes, in the words of the order, to "other applicable laws." And just to read a little bit more context, that "Individuals that are detained, when tried, will be tried for violations of the laws of war and other applicable laws." But the attorney general said that only war crimes would be tried by the tribunals, and I'm wondering whether you agree with the attorney general.

Mr. Haynes: It's my understanding that the president intends to use this tool, if he does do it, consistent with the tradition of the use of military commissions, which traditionally has been for that purpose, to try war crimes under the common law of war.

Senator Levin: And only war crimes.

Mr. Haynes: That's my understanding, yes, sir.

Senator Levin: Let me go over with you now some of the possible elements of a full and fair hearing. I'd like to just hear from you whether or not you think these elements are part of a full and fair hearing. First, the presumption of innocence. Will there be a presumption of innocence?

Mr. Haynes: Senator Levin, the secretary has not made decisions about the individual aspects of the proceedings. There will be some basic procedures that will have to be balanced in context of all the other proceedings. Those elements of due process that are in accordance with the tradition of the use of military commissions will be considered and ultimately decided by the secretary of Defense.

Senator Levin: In other words, there is still a question as to whether or not, for instance, there's a right to counsel or there's a presumption of innocence or being informed of the charges against you. Are those still unresolved questions?

Mr. Haynes: Well, no, sir. The president's order says that there shall be a full and fair trial. It clearly says that the accused will have counsel. What is a full and fair trial may involve a number of different issues, but clearly that is a direct order from the president, and I'm confident that there will be one.

Senator Levin: But I'm trying to just conclude by finding out whether or not there's some question as to whether or not there is the presumption of innocence or the right to cross-examine witnesses or being informed of the charges against you in a language that you understand, whether or not there's still a question as to whether or not those are guaranteed by the full-and-fair-trial requirement. Is there still a question about those kind of fundamental issues?

Mr. Haynes: Until the secretary makes a decision about the entire bundle of procedures that will be applied, there will be -- I would like to reserve the form of that, as opposed to answering specific questions about specific aspects.

Senator Levin: Thank you. Senator Warner.

Senator Warner: Mr. Chairman, I think we should make it clear that, on the announcement by the president of his intention to exercise his power under the Constitution to establish these tribunals, you and I discussed the advisability of this hearing and jointly decided that it was definitely a responsibility of this committee, and here we are today.

But in the interim, we consulted with Secretary Rumsfeld, as well as the deputy secretary and others, and the Department of Defense made it eminently clear to the committee that they were in the formative stages of compiling the sets of regulations which -- (inaudible) -- promulgated and that, therefore, even though we're going ahead today, we're likely to receive responses much like the ones we've just received, where they're somewhat inconclusive in response to your very good questions.

So I appreciate that, understand that. And we must accept the fact that you're, say, halfway, midway in the process, and that this committee will eventually have another hearing, at which time we'll get more specific details about what you intend to put into the regulations. So, therefore, I want to spend some time on procedure as to how you're going about this task given by the president to the secretary of Defense.

Consultation. We're having our hearing of this committee. The Committee of Judiciary of the Senate has had its hearing. Are there other means by which you intend to consult Congress? And I presume, although it wasn't directly in your statement, that you will take into consideration the recommendations not only of the committee of jurisdiction in the Congress, this and the Judiciary Committee, but individual members. By what process do you hope to achieve that? Because I think it's important that all 100 members of the Senate feel they've had a voice, if they so desire to exercise it, in the formulation of these regulations.

Mr. Wolfowitz: The secretary has made it clear, from the time he was assigned this responsibility, that he wanted to proceed very deliberately and very carefully in thinking through all of these issues. He is not a lawyer, but he's determined to get all the best possible range of views that he can.

As I indicated earlier, we're consulting with a wide range of individuals inside and outside the government. We're consulting in a more institutional way with the other branches of government that have views, including the Department of Justice, Department of State. We welcome the views of the Senate and the House, either institutionally or individually.

And our principal mechanism for getting these views is our general counsel that Mr. Haynes (will speak about in ?) just a moment. But the procedure really is to try to identify all of the issues, including the ones that Senator Levin just raised, and to try to get a sense of what the range of recommendations would be, what the range of precedents would be, and ultimately to come to some conclusion.

Mr. Haynes: I'd like to echo the deputy secretary's comments. I'd point out that the president issued his order almost a month ago, November 13th. And in that intervening period, the Judiciary Committee has had four meetings, as I understand it. We've had a number of conversations with individual members of Congress and senators, and I solicit your views on a continuing basis.

You can be sure that the views expressed directly and in hearings are being absorbed, factored in, considered, and are deeply appreciated.

Senator Warner: Well, I think it's important that that be placed in today's record, because I've had the opportunity to consult with both of you several times on this and I want other members of Congress to feel they, too, because this is a very, very important threshold in our contemporary history of this country, and we want to see that it's carried out with the proper exercise of the authority of the president under the Constitution as well as the Congress.

Now, let's turn to the Department of Justice. It might well be that in the course of these procedures that the lawyers who are defending or otherwise interested in the tribunals will go to the Department of Justice and perhaps institute proceedings in the federal court system challenging certain aspects of the tribunal process.

Therefore, it seems to me that we should have greater clarification, the degree to which the attorney general and his colleagues are being consulted on this, because they may well be the ones in the federal system to meet the challenges of the tribunal system in the federal courts.

Mr. Haynes: Senator, we have had some informal discussions with the Department of Justice and intend to be consulting them on a -- on an ongoing basis.

Senator Warner: Why do you rest on the "informal"? I mean, how do you distinguish between formal and informal? Is it a casual call? Or are you saying, "Now, Mr. Attorney General, this is what we have"? Are you going to submit to him before making public your regulations? It seems to me he's entrusted -- well -- under the Constitution and otherwise, he's the president's chief law enforcement officer. Now, I don't suggest in any way that there be any infringement on the right of the secretary of defense to conduct these on behalf -- tribunals on behalf of the president -- but I think it's important that it be more than just informal conversation, that we should have some formality to this process with the Justice Department.

Mr. Haynes: Senator, I did not mean to preclude that. What I meant to -- what I -- elaborate on at this time is to tell you a little bit about the process that we are employing. This is a military order. The secretary is charged with implementing it. What we are doing within the department is, in short, I have convened a panel of the senior lawyers in the department, including those who are charged with administering the military justice system which, as Senator Levin points out, in its usual form is very different from a military commission. Nevertheless, they have very important views and experiences and institutional records and understandings to draw on. In order to surface and consider carefully the issues that Senator Levin raised as well as some other issues -- in order to ensure that we get an appropriate cast to this implementation, as opposed to recreating the Article 3 process, that is not the intention of the president to do. When I said informal consultations with the Department of Justice, there will be more. Certainly they -- the Department of Justice has a deep well of expertise on which to draw, and they will, of course, be those charged with defending these procedures if and when they are challenged by any --

Senator Warner: Well, all right. You're getting a little long- winded here. You're going to submit to the Department of Justice before finalization for their review, whether you call it formal or informal, this set of regulations --

Mr. Haynes: Yes sir, we will --

Senator Warner: Am I correct in that, because I, you know, I've been around here a little while in this man's government and woman's government. I have seen frictions between the departments of the government, and that works against the best interests of our president. We don't want that to arise in this instance.

And lastly, I think it very wisely that you have gone to the outside for a series of experts, and you have shared with me some details on that. Let's make it clear that we just haven't gone to Republicans because this is a Republican administration. It's across- the-board. It hasn't got a thing to do with politics, in my judgment. And you have sought out and are receiving the advice and counsel of a wide range of very well recognized and respected former jurists, practicing lawyers, professors and the like. I would just like to have that on the record, Mr. Secretary.

Mr. Wolfowitz: Absolutely clear, Senator. We were consulting a wide range of people, and I don't want, by mentioning names, to suggest that these are the only people we're talking to, but just to give you some idea of the caliber of people that the secretary has met with or that he's had general counsel meet with -- people like former Secretary of Transportation Bill Coleman, former White House General Counsel Lloyd Cutler, a democrat, former Attorney General Griffin Bell, former FBI director and a judge, William Webster. It's people of that caliber, and it's, I think, representative of a very wide range of political opinions.

Senator Warner: I thank you, Mr. Secretary. I'm hopeful that you would put that out to show politics is playing no role whatsoever as we formulate these regulations. (Inaudible) -- Mr. Chairman.

Senator Levin: Thank you very much, Senator Warner. I'm now going to call on Senator Kennedy. There's a vote on. Many of us are going to want to go and vote and come back. The list of the order of recognition is here. I won't read everybody, but Senator Inhofe, you would be next, but you --

Senator James Inhofe (R-OK): I'd rather wait --

Senator Levin: -- have to vote. So I'm not sure whether you want to try to do that. But I'm going to turn this now to Senator Kennedy. He's next. If you're here when he's done with his eight-minute round, you would be next. If not, when you get back, you should then be recognized.

Senator Infofe: Mr. Chairman, I'm going to stay. I'll be here.

Senator Edward Kennedy (D-MA): Thank you, Mr. Chairman, and thank you, Mr. Secretary and Mr. Haynes for the indication that you're welcoming to getting some input as you're working forward and developing this process. You know, I think it's a -- something that we should try and engage with you on.

Let me go first to the -- one of the areas that I'm concerned about, and that's about how other countries will see military tribunals, and whether they will look at this as a double standard by the United States. Over the years, our government has actively supported the rule of law internationally and we've consistently opposed the military tribunals in other nations because of their failure to provide the adequate due process. And the Department of State's most recent human rights report last February said the following about the use of military courts in Peru in the case of Laurie Berenson, an American who was tried for terrorism by a secret military tribunal. Proceedings in these military courts do not meet internationally accepted standards for openness, fairness, due process. It said that Ms. Berenson in particular did not receive sufficient guarantees of due process.

So, given the -- and this is the criticism that the United States has made about tribunals. We have done that with regards, in recent years, Burma, China, Colombia, Egypt, Malaysia, Nigeria, Peru, Russia, the Sudan -- the list -- Turkey -- the list goes on and it goes on. Given the broad scope of the initial military order, even if it's narrowed now, isn't there a danger that it will allow countries to justify secret military tribunals that avoid even the basic due process safeguards? I mean, what is the administration doing to see that America's credibility in criticizing these secret military tribunals in other countries will not be undermined by the military order.

Mr. Wolfowitz: Senator, I think that's one of the reasons why we want to work out very carefully the kinds of procedures that will make the judgements of any military tribunal, any military commission that we establish meet a full standard of fairness. We have criticized, for example, the tribunals in Peru, for violations of fundamental principles of due process. And I think when, if we have to judge individuals before a U.S. military tribunal, I think we will be setting a standard by which other countries will have to be judged, and I think it will reinforce our case in objection to the kinds of abuses that you refer to.

Senator Kennedy: Well, I think that's right. I think the concern is now with the full and fair hearing, whether we've already opened the door to other countries. Obviously, they will be influenced by the final recommendations, but has the State Department, were they involved in the initial declaration or statement about the tribunals themselves? Have they had any input? Has Secretary Powell expressed any views that you know?

Mr. Wolfowitz: We are consulting with them also, and we are clearly interested in their views. The point that Chairman Levin made that -- how these tribunals are viewed by other countries may affect their willingness to turn individuals over to us makes this, among other reasons, a matter of international significance.

Senator Kennedy: The chairman mentioned some of these protections, but I want to just come back to them because I do think they are -- define whether these are going to be -- will meet the standards of adequate due process, about the presumption of innocence, beyond a reasonable doubt, the proof beyond a reasonable doubt, of representation by independent and effective counsel, the right to examine and challenge evidence offered by the prosecution, the right to present evidence of innocence, right to cross-examine adverse witnesses and to offer witnesses, reasonable rules of evidence, and the appellate review of convictions.

Now, these protections are instituted because they, in our standard of justice, because they help identify the guilty and also to protect the innocent. They're not luxuries. They are essential aspects of our who process of justice. And, I'm just interested in what you might be able to say -- or if you can't say at this time and when you will be able to tell us -- which ones will be in and which ones will be out, in terms of the order. This is against a background, a statement where the, I think, Secretary Rumsfeld a few weeks ago had indicated that the procedures may very well be established on the basis of who the individual is and who might be actually being tried. I'm interested to come back to these items. They -- they -- and hearing from you which -- when we will know whether these kinds of protections will be included in the order, or when they will be -- or whether they will not be -- and when we might -- when we might know that.

Mr. Haynes: Senator, neither the president nor the secretary has indicated a deadline for when he or they want these rules to be put into effect. But let me just make one observation about your list, which is an important list. As you might imagine, and I'm sure you know, the method by which any one of those principles might be implemented can vary. One of the reasons that the president chose to create this option for himself, this additional tool in the war on terrorism, is to recognize that this is an extraordinarily different risk than we normally take, and to recognize that in a war, law enforcement is not the principle aim, it's winning the war. Now, that doesn't mean that it comes at the expense of fairness or the American ideals or principles of justice. It doesn't come at that expense. But take the rules of evidence, for example. What the secretary of defense will do, and what the president has already done, is maximize the ability to find the truth. The standard of evidence spelled out in the president's military order is to admit that evidence which is probative to a reasonable person. That is different --

Senator Kennedy: Well, I don't want to, you know, interrupt you here, but I do -- there's another area that seems to be fairly subjective. I don't -- my own sense is these are not luxuries which we sort of tolerate when times are good. I mean, they are essential aspects of a due process system. And, you know, we want to try, and we will -- I hear your answer that you're not prepared to make these recommendations now but they will be forthcoming. Obviously, they'll have to before the military tribunals are established.

I'd like to get to what I addressed the secretary just in my opening comment about the decision to try Zacarias Moussaoui in the federal district court about the considerations. Mr. Wolfowitz, if you would be good enough to tell us what were the considerations in making the decisions to proceed in the federal courts as opposed to a military tribunal.

Mr. Wolfowitz: To the best of my knowledge, that was a decision made by the Justice Department.

Senator Kennedy: You weren't involved in this?

Mr. Wolfowitz: I was not personally. I don't believe we were as a department either, were we?

Mr. Haynes: No, we were not involved.

Senator Kennedy: Do you have a view, Mr. Secretary, on that?

Mr. Wolfowitz: No, I don't. I am -- they obviously have the evidence that they believe gives them a case for going to trial, and I'm not aware -- and I would have to know the details to have a view.

Senator Kennedy: My time is up.

Senator Infofe: Thank you, Mr. Chairman. I think some of the rest of them will be back, and I'm not going to take all of my time, because we do have a vote that's on. But let me just ask Mr. Haynes something that was alluded to briefly by Secretary Wolfowitz. During the judiciary hearing when Attorney General Ashcroft was asked some questions, he said that not only would the U.S. Supreme Court review whatever's been done, but he believes that the issue resolved in the courts in 1942 decision, referring to that decision where the eight suspected German saboteurs were brought to justice; six of them were executed. The question I would have would be a legal question. Legally speaking, between the court's decision during a declared state of war in 1942 and its application to our current law on terrorism -- or war on terrorism -- is there a legal distinction or difference?

Mr. Haynes: I do not believe that there is a difference that matters here. We are clearly in a state of war, and we are very confident that the president's order --

Senator Infofe: All right. Let me ask another question to either one of you. I've been concerned about one thing, and that is that we know that many of the -- many people will be arrested in conjunction with September the 11th by governments of foreign countries. And when that happens, we are concerned about extradition. We're concerned about getting them over here. And I know that there is a concern that some of these countries, such as, I believe it is Spain, where they apprehended some individuals, they're reluctant to extradite to this country because of the system of justice that they might -- believe that we're going to be using. Is there some kind of a legislative fix, Secretary Wolfowitz, that could make them less reluctant to allow them to come back here for justice?

Mr. Wolfowitz: Senator, I think the principle issue that we're going to have with those countries, as we have with Spain, is over the issue of the death penalty. And I think in every one of these cases, we will have to, if there's an issue, we'll have to negotiate. The president is not required to submit anyone to a military tribunal. And if that were to become an obstacle to extraditing somebody that was important to us,I'm sure that would be something he would take into account. I think -- my feeling would be it's much better to leave him the flexibility than to try, in some way --

Senator Infofe: And that flexibility should, I believe, anyway, encourage them to allow us to have access to those witnesses. At least I hope that's the case.

Mr. Wolfowitz: I would hope so. And it seems to me, given the horror of what took place on September 11th -- let's forget about military tribunals -- that it seems to me all the -- if someone's going to be tried by an American civil court, it is for something that, it seems to me, we're fully entitled to have custody of him.

Senator Infofe: Let me just share a personal experience with you. I almost didn't come today, Mr. Secretary, because I've already made up my mind; I did so a long time ago. But many years ago, when I was in the United States Army, I had that job. I was a lowly clerk in the military courts.

And as this discussion has come forward and all these concerns about beyond reasonable doubt, presumption of innocence, the two- thirds versus unanimity in terms of the death penalty, and rights and protections of these terrorists, I'm having a very hard time with that, because I remember so vividly sitting in the courtrooms of military justice many years ago as an Army clerk, looking into these faces of these men and women, our military people who were brought to justice.
I don't recall one time, not one time during that time that I spent in those military courts, hearing or remembering, recalling any of our soldiers who were being administered justice at that time complaining about the system of justice that they were receiving.

And I have very strong feelings that if that system of justice was good enough for our own troops, as it's good enough for our own troops today, it's ludicrous to believe that that system is not good enough for a terrorist. And so I  

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Directeur de la publication : Joël-François Dumont
Comité de rédaction : Jacques de Lestapis, Hugues Dumont, François de Vries (Bruxelles), Hans-Ulrich Helfer (Suisse), Michael Hellerforth (Allemagne).
Comité militaire : VAE Guy Labouérie (†), GAA François Mermet (2S), CF Patrice Théry (Asie).

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