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Hamdan V. Rumsfeld: Establishing a Constitutional Process

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Hamdan V. Rumsfeld: Establishing a Constitutional Process S. HRG. 109–1056 HAMDAN V. RUMSFELD: ESTABLISHING A CONSTITUTIONAL PROCESS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION JULY 11, 2006 Serial No. J–109–95 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 43–111 PDF WASHINGTON : 2009 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) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Nov 24 2008 11:01 Apr 27, 2009 Jkt 043111 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\43111.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma MICHAEL O’NEILL, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate Nov 24 2008 11:01 Apr 27, 2009 Jkt 043111 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\43111.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, pre- pared statement ................................................................................................... 193 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2 prepared statement .......................................................................................... 221 Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, prepared statement .............................................................................................................. 219 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 WITNESSES Bradbury, Steven G., Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C .................................................. 6 Cobb, Paul W. ‘‘Whit’’, Jr., former Deputy General Counsel, U.S. Deposition, Washington, D.C .................................................................................................. 54 Collins, Daniel P., former Associate Deputy Attorney General, and Partner, Munger, Tolles & Olson, Los Angeles, California ............................................. 57 Dell’Orto, Daniel J., Principal Deputy General Counsel, Office of General Counsel, U.S. Department of Defense, Washington, D.C ................................. 4 Koh, Harold Hongju, Dean, Yale Law School, New Haven, Connecticut ............ 50 Olson, Theodore B., former Solicitor General of the United States, and Part- ner, Gibson, Dunn & Crutcher, Washington, D.C ............................................. 48 Silliman, Scott L., Retired Air Force Judge Advocate, Center on Law, Ethics, and National Security, Duke University School of Law, Durham, North Carolina ................................................................................................................ 55 Swift, Lieutenant Commander Charles D., Office of Military Commissions, Office of Chief Defense Counsel, U.S. Department of Defense, Washington, D.C ......................................................................................................................... 52 QUESTIONS AND ANSWERS Responses of Steven Bradbury to questions submitted by Senators Leahy, Feingold, Feinstein, Kennedy and Specter ........................................................ 72 Responses of Paul W. ‘‘Whit’’ Cobb to questions submitted by Senator Specter 101 Responses of Daniel P. Collins to questions submitted by Senator Specter ....... 105 Responses of Daniel Dell’Orto to questions submitted by Senators Leahy, Feinstein, Kennedy, Kyl, Feingold, Schumer and Specter ............................... 109 Responses of Harold Hongju Koh to questions submitted by Senator Specter .. 126 Responses of Theodore Olson to questions submitted by Senator Specter ......... 127 Responses of Scott Silliman to questions submitted by Senators Specter, Kennedy and Feingold ......................................................................................... 130 Responses of Lieutenant Commander Charles Swift to questions submitted by Senators Leahy, Feingold, Kennedy and Specter ......................................... 139 SUBMISSIONS FOR THE RECORD Bradbury, Steven G., Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C., statement .............................. 158 Cobb, Paul W. ‘‘Whit’’, Jr., former Deputy General Counsel, U.S. Deposition, Washington, D.C., statement .............................................................................. 169 Collins, Daniel P., former Associate Deputy Attorney General, and Partner, Munger, Tolles & Olson, Los Angeles, California, statement .......................... 176 Dell’Orto, Daniel J., Principal Deputy General Counsel, Office of General Counsel, U.S. Department of Defense, Washington, D.C., statement ............. 186 (III) VerDate Nov 24 2008 11:01 Apr 27, 2009 Jkt 043111 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\43111.TXT SJUD1 PsN: CMORC IV Page Fein, Bruce, former Associate Deputy Attorney General, Bruce Fein & Associ- ates, Washington, D.C., statement ..................................................................... 189 Letter, July 10, 2006 to Senators Specter and Leahy from retired Military ...... 200 Koh, Harold Hongju, Dean, Yale Law School, New Haven, Connecticut, state- ment ...................................................................................................................... 202 Olson, Theodore B., former Solicitor General of the United States, and Part- ner, Gibson, Dunn & Crutcher, Washington, D.C., statement ......................... 225 Silliman, Scott L., Retired Air Force Judge Advocate, Center on Law, Ethics, and National Security, Duke University School of Law, Durham, North Carolina, statement ............................................................................................. 247 Swift, Lieutenant Commander Charles D., Office of Military Commissions, Office of Chief Defense Counsel, U.S. Department of Defense, Washington, D.C., statement and attachments ....................................................................... 255 VerDate Nov 24 2008 11:01 Apr 27, 2009 Jkt 043111 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\43111.TXT SJUD1 PsN: CMORC HAMDAN V. RUMSFELD: ESTABLISHING A CONSTITUTIONAL PROCESS TUESDAY, JULY 11, 2006 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 9:29 a.m., in room SH–216, Hart Senate Office Building, Hon. Arlen Specter, Chair- man of the Committee, presiding. Present: Senators Specter, Hatch, Grassley, Kyl, Sessions, Gra- ham, Cornyn, Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. Good morning, ladies and gentlemen. The Senate Judiciary Committee will now proceed to hold a hearing on what response should be made to the decision of the Supreme Court of the United States on June 29th, a week ago Thursday, which held that the procedures in place for the trial of certain de- tainees in Guantanamo did not satisfy the Constitution of the United States or the Geneva Convention. Shortly after 9/11, Sen- ator Durbin and I introduced relevant legislation, as did Senator Leahy, Senator Graham, and others. The Constitution is explicit under Article I, Section 8 that the Congress has the authority and responsibility to establish the rules of trials of those captured on land or sea. And we are now proceeding to follow the requirements of constitutional and international law, as handed down by the Su- preme Court of the United States, and to do it in a way which will permit us to fairly try those accused of war crimes and will permit us to fairly, appropriately, and judiciously detain enemy combat- ants in accordance with the rule of law. The Judiciary Committee held hearings on Guantanamo in June of 2005. I made a trip to Guantanamo in August of 2005, and we had been working on legislation and had legislation prepared in an- ticipation of the Supreme Court decision, which we thought would require congressional action. And when the Court came down with its decision, it was studied, and we introduced proposed legislation. But it is a very complex matter, and we need to consider proce- dures to determine what is appropriate evidence; whether hearsay should be allowed; perhaps not at trials for war criminals or those charged with war crimes, but perhaps for detainees, the issue of whether a detainee’s statements can be used if there is a question about whether the statements were voluntary or coerced; the right (1) VerDate Nov 24 2008 11:01 Apr 27, 2009 Jkt 043111 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43111.TXT SJUD1 PsN: CMORC 2 to counsel, the right to classified information; where the lawyers are JAG officers, they are cleared; where they are private counsel, they are not cleared. It is more complicated. There are many, many questions which
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