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S. HRG. 109–881 MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN V. RUMSFELD HEARINGS BEFORE THE COMMITTEE ON ARMED SERVICES UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION JULY 13, 19; AUGUST 2, 2006 Printed for the use of the Committee on Armed Services ( U.S. GOVERNMENT PRINTING OFFICE 35–144 PDF WASHINGTON : 2007 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 16:04 May 08, 2007 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 C:\DOCS\35144.TXT SARMSER2 PsN: JUNEB COMMITTEE ON ARMED SERVICES JOHN WARNER, Virginia, Chairman JOHN MCCAIN, Arizona CARL LEVIN, Michigan JAMES M. INHOFE, Oklahoma EDWARD M. KENNEDY, Massachusetts PAT ROBERTS, Kansas ROBERT C. BYRD, West Virginia JEFF SESSIONS, Alabama JOSEPH I. LIEBERMAN, Connecticut SUSAN M. COLLINS, Maine JACK REED, Rhode Island JOHN ENSIGN, Nevada DANIEL K. AKAKA, Hawaii JAMES M. TALENT, Missouri BILL NELSON, Florida SAXBY CHAMBLISS, Georgia E. BENJAMIN NELSON, Nebraska LINDSEY O. GRAHAM, South Carolina MARK DAYTON, Minnesota ELIZABETH DOLE, North Carolina EVAN BAYH, Indiana JOHN CORNYN, Texas HILLARY RODHAM CLINTON, New York JOHN THUNE, South Dakota CHARLES S. ABELL, Staff Director RICHARD D. DEBOBES, Democratic Staff Director (II) VerDate 0ct 09 2002 16:04 May 08, 2007 Jkt 000000 PO 00000 Frm 00002 Fmt 0486 Sfmt 0486 C:\DOCS\35144.TXT SARMSER2 PsN: JUNEB C O N T E N T S CHRONOLOGICAL LIST OF WITNESSES MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN V. RUMSFELD JULY 13, 2006 Page Black, MG Scott C., USA, The Judge Advocate General of the Army ................ 7 McPherson, RADM James E., USN, Judge Advocate General of the Navy ........ 8 Rives, Maj. Gen. Jack L., USAF, The Judge Advocate General of the Air Force ...................................................................................................................... 8 Sandkulher, Brig. Gen. Kevin M., USMC, Staff Judge Advocate to the Com- mandant of the Marine Corps ............................................................................. 8 Romig, MG Thomas J., USA (Ret.), Former Judge Advocate General of the Army ...................................................................................................................... 8 Hutson, RADM John D., USN (Ret.), Former Judge Advocate General of the Navy ................................................................................................................ 9 CONTINUE TO RECEIVE TESTIMONY ON MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN V. RUMSFELD JULY 19, 2006 Massimino, Elisa C., Director, Washington Office, Human Rights First ............ 104 Bierman, Katherine Newell, Counterterrorism Counsel, U.S. Program, Human Rights Watch .......................................................................................... 122 Fidell, Eugene R., President, National Institute of Military Justice .................. 133 Mernin, Michael, Chair, Committee on Military Affairs and Justice, The Association of the Bar of the City of New York ................................................. 164 Carafano, James J., Senior Research Fellow, The Heritage Foundation ............ 213 Katyal, Neal K., Professor of Law, Georgetown University ................................. 231 Schlueter, David A., Hardy Professor of Law and Director of Advocacy Pro- grams, St. Mary’s University .............................................................................. 249 Silliman, Scott L., Professor of the Practice of Law and Executive Director, Center on Law, Ethics, and National Security, Duke University .................... 260 CONTINUE TO RECEIVE TESTIMONY ON THE FUTURE OF MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN V. RUMSFELD AUGUST 2, 2006 Gonzales, Hon. Alberto R., Attorney General of the United States .................... 316 England, Hon. Gordon R., Deputy Secretary of Defense ...................................... 322 (III) VerDate 0ct 09 2002 16:04 May 08, 2007 Jkt 000000 PO 00000 Frm 00003 Fmt 0486 Sfmt 0486 C:\DOCS\35144.TXT SARMSER2 PsN: JUNEB VerDate 0ct 09 2002 16:04 May 08, 2007 Jkt 000000 PO 00000 Frm 00004 Fmt 0486 Sfmt 0486 C:\DOCS\35144.TXT SARMSER2 PsN: JUNEB MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN V. RUMSFELD THURSDAY, JULY 13, 2006 U.S. SENATE, COMMITTEE ON ARMED SERVICES, Washington, DC. The committee met, pursuant to notice, at 10:02 a.m. in room SH–216, Hart Senate Office Building, Senator John Warner (chair- man) presiding. Committee members present: Senators Warner, McCain, Inhofe, Roberts, Sessions, Collins, Talent, Chambliss, Graham, Cornyn, Thune, Levin, Kennedy, Byrd, Lieberman, Reed, Bill Nelson, E. Benjamin Nelson, Dayton, Bayh, and Clinton. Committee staff members present: Charles S. Abell, staff direc- tor; and Leah C. Brewer, nominations and hearings clerk. Majority staff members present: William M. Caniano, profes- sional staff member; Regina A. Dubey, professional staff member; Ambrose R. Hock, professional staff member; Derek J. Maurer, pro- fessional staff member; David M. Morriss, counsel; and Scott W. Stucky, general counsel. Minority staff members present: Richard D. DeBobes, Democratic staff director; Michael J. Kuiken, professional staff member; Peter K. Levine, minority counsel; William G.P. Monahan, minority coun- sel; and Michael J. Noblet, staff assistant. Staff assistants present: Jessica L. Kingston, Benjamin L. Rubin, and Pendred K. Wilson. Committee members’ assistants present: Ann Loomis, assistant to Senator Warner; Pablo Chavez, Christopher J. Paul, and Rich- ard H. Fontaine, Jr., assistants to Senator McCain; John A. Bonsell and Jeremy Shull, assistants to Senator Inhofe; Chris Arnold, as- sistant to Senator Roberts; Mackenzie M. Eaglen, assistant to Sen- ator Collins; Clyde A. Taylor IV, assistant to Senator Chambliss; Matthew R. Rimkunas, assistant to Senator Graham; Russell J. Thomasson, assistant to Senator Cornyn; Stuart C. Mallory, assist- ant to Senator Thune; Mieke Y. Eoyang and Joseph Axelrad, assist- ants to Senator Kennedy; Christina Evans and Erik Raven, assist- ants to Senator Byrd; Frederick M. Downey, assistant to Senator Lieberman; Elizabeth King, assistant to Senator Reed; William K. Sutey, assistant to Senator Bill Nelson; Eric Pierce, assistant to Senator Ben Nelson; Luke Ballman, assistant to Senator Dayton; Todd Rosenblum, assistant to Senator Bayh; and Andrew Shapiro, assistant to Senator Clinton. (1) VerDate 0ct 09 2002 16:04 May 08, 2007 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\35144.TXT SARMSER2 PsN: JUNEB 2 OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN Chairman WARNER. Subsequent to the Supreme Court decision, I was approached by a number of people who inquired as to my opinion with regard to the gravity of this situation. I said, this piece of legislation which Congress is now tasked to provide could be one of the landmark pieces of legislation, certainly in the 28 years that I’ve been privileged to be in the United States Senate. Given that we started a little late this morning—we had to do that to accommodate some of our colleagues on the Judiciary Com- mittee—I will not, in an opening statement, try to go back over the history of how the administration, and, indeed, this country, have tried to deal with this very complex and, really, unprecedented sit- uation regarding detainees. Most, if not all, have no real state alle- giance, and were not in a state-sponsored type of conflict. I will just assume that everyone before us here on this panel, and, indeed, my colleagues, are well aware of that. Therefore, I also will not try and get into any dissertation about the Supreme Court decision. We’ve all studied that. I’ll simply say that we, in my judg- ment, as a Congress, in this legislation, must meet the tenets and objectives of that opinion; otherwise, such legislation that we will devise and enact into law might well be struck down by subsequent Federal Court review, and that would not be in the interests of this Nation. The eyes of the world are on this Nation as to how we in- tend to handle this type of situation, and handle it in a way that a measure of legal rights and human rights are given to detainees. I say ‘‘a measure,’’ because I’m not prepared, this morning, to say what would be the parameters in that situation. Like several other members of this committee, I’ve been in consultation with the ad- ministration, and it was made very clear to me by the National Se- curity Advisor, Mr. Hadley, and Ms. Miers, Counsel to the Presi- dent, that they were working the issue, that there were some hon- est difference of opinion as to approach within the administration— that’s quite understandable; it’s the way it should be—but that they would reconcile those positions and advise Congress shortly after the President returns from the G8 conference. Given that there have been two hearings at which witnesses have appeared and have stated rather finite parameters, I do not believe that we, Congress, have received the last word, by any means, as to where and how the administration would like to see this legislation proceed. With that in mind, I’d just caution my colleagues—let us be most respectful of the fact that we will work in partnership with the ad- ministration, but the burden rests on Congress to enact this law. It’s my understanding—and
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