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shall, as occasion requires, make such rules for the conduct of the proceeding, consistent with the powers of military commissions under the Articles or War, as it shall deem necessary for a full and fair trial of the matters before it.").

President Truman, through his representative Justice Jackson, provided that the Allied prosecutors would submit, and the military tribunal would approve, procedures for conducting the Nurembery trial. See CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL ART. 14(E).

President Bush's order to try the terrorists who helped kill 4,000 innocent Americans provides for the issuance of further procedures by the Department of Defense and is thus consistent with the traditional deference that Congress has shown to past Presidents who ordered military commissions.

Different Procedures for Military Commissions-Fourth, military commissions and tribunals dealing with war crimes have traditionally had different means of adopting procedures, different standards of evidence, different voting requirements, and different appeal rights than Article III courts by our servicemen.

The charter for the Nuremberg International Military Tribunal provides that the prosectors would draft the procedures prior to trial for the military tribunal's approval, that evidence would be admitted if it had probative value, that a majority vote was sufficient in all cases, and that there would be no appeals. CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL ART 14(e) (procedures), 19 (evidence), 4(c) (vote), and 26 (appeal).

Similarly, President Roosevelt's proclamation for the trial of the eight Nazi saboteurs by military commission provided for the commission to set its own procedures, for evidence to be admitted when it had probative value to a reasonable man, for conviction by a two-third's vote, and for no direct appeal to a higher court. Military Order of July 2, 1942.

Consistent with these precedents for the admission of evidence with probative value to a reasonable person, for conviction by a two-third's vote, and for no direct appeal. Military Order of November 13, 2001 §4. Of course, terrorists tried in the United States will have habeas corpus review in the federal courts. Ex parte Quirin. 317 U.S. 1 (1942). Before we criticize the Department of Defense's procedures, we should wait until all the procedures are drafted and we have had an opportunity to review them.

Constitution Does Not Require Consultation-Finally, while Article II, Section 2, Clause 2 of the Constitution indicates that the President should obtain the Advice and Consent of the Senate in appointing federal judges, there is no similar consultation requirement for the issuance of military orders. Article II, Section 2, Clause 1 provides that the President is the Commander in Chief. As Commander in Chief, several Presidents have issued orders and authorized agreements to try war criminals by military tribunal or commission without adhering to a consultation with Congress requirement.

In Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court upheld the constitutionality of the military commission without any reference to a consultation with Congress requirement. The Court held that existing statutes-the pre-Uniform Code of Military Justice statutes-recognized military commissions as the proper forum to try persons accused of war crimes. Id. at 29.

Similarly, there was no formal question raised that President Truman should have consulted with Congress before agreeing with the other Allied Powers to use an International Military Tribunal to try the major Nazi war criminals. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 73 (1992). And the President's subordinates, Generals Eisenhower and MacArthur, issued orders allowing literally hundreds of military commissions to try lesser war criminals without adhering to any consultation with Congress requirement. Maximillian Koessler, American War Crimes Trials in Europe, 39 Goe. L.J. 18 (1951). In In re Yamashita, 327 U.S. 1 (1946), the Supreme Court upheld the use of Military Commissions to try war criminals, again with no mention of a consultation requirement for the President or the Generals with Congress.

The same constitutional and statutory authorizations for the President's use of military commissions. remain in the law today. Article II, Section 2, Clause 2; 10 U.S.C. §821. No additional enactments or resolutions of Congress are required. Accordingly, while a formal consultation by President Bush with Congress would have been politically expedient, it was not constitutionally required. Nonetheless, I am pleased to see this hearing, and I hope to see increased consultation and cooperation with the Congress in the future.

CONCLUSION

In sum, the President had constitutional, congressional, and historical authority to issue the November 13th Military Order calling for trial of the terrorists who helped to kill 4,000 innocent Americans by military commissions. Instead of listening to the knee-jerk reaction of political interest groups attacking the Administration, we should await the issuance of the procedures by the Department of Defense. We should then review the procedures and provide constructive criticism.

I was very pleased Sunday to hear Secretary of Defense Rumsfeld welcome comment and debate on this subject as the DOD drafts its procedures. I am sure the Department of Defense will keep in mind that the procedures by which the accused terrorists are to be judged must be fair in fact and in appearance. As Justice Jackson said in his opening statement at the Nuremberg trial: "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice." TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 168 (1992).

Just as history judged the Allied powers by how they conducted the Nuremberg trial, so history will judge America by how we conduct the trials of the terrorists. We do not want history to conclude that America, through these military commissions, rendered "Victor's Justice," but real justice. We have done it before, and we can do it again.

While I will defer to the President until the procedures for the commissions are published by the Department of Defense, I thank the Chairman for holding this hearing, and I look forward to hearing from our excellent witnesses.

Senator SCHUMER. Thank you, Jeff. And, again, as I stated, I agree with you. I don't think anybody-some may, but I don't think any-most everybody disagrees that there is a need for secrecy and having a regular civil trial, criminal trial doesn't make sense here. We are just trying to figure out where the appropriate balance ought to be. What the President has proposed, first, hasn't been fleshed out. Second, unlike what Senator Hatch said, it is not a courts-martial. There are more procedures in a courts-martial. We may come to the conclusion on this committee that it ought to be the same as a courts-martial.

Senator SESSIONS. But a courts-martial doesn't give all the protections that a civil trial that we think protect defendants. But we don't think it is unjust.

Senator SCHUMER. That is correct.

Senator SESSIONS. And I would note Mr. Gonzalez, the White House counsel, had written an op ed in the New York Times in which he did make a strong statement that these commissions are not-these commission trials are not secret. The President's Order authorizes the Secretary to close the proceedings to protect classified information. It does not require any trial, or even portions, to be conducted in secret. And we should be as open as possible, he said.

Senator SCHUMER. And we have dealt with that under the CIPA law in the past as well, so we have good precedents here. We have got to figure out what to do. I think a lot of the problems here have occurred because the initial statements were so vague and so broad, and we are hoping to flesh those out.

We were just going to have the ranking members make opening statements, but I have been told that Mr. Feingold wants to make a brief statement. I know he feels very strongly about this, and so with the permission of the committee, I would call on Senator Feingold for a brief opening statement.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Mr. Chairman, I certainly don't want to delay things, and I will only speak for a minute. But I would like to welcome all the witnesses here today, and I certainly want to thank the chairman. This is an extremely important hearing to be held, in particular because I am concerned that the President has not adequately consulted with Congress on the issue of military commissions. I am concerned that he has not, in my reading, demonstrated that the civilian courts are inadequate to conduct these trials, particularly when terrorists have previously been tried in civilian courts, and I, like the chairman and I want this clear-do not oppose the concept of tribunals categorically. In fact, I believe the use of an international court at Nuremberg was effective in bringing Nazi war criminals to justice in a fair manner, but also while conferring legitimacy to the process. But I believe that military tribunals are proceedings our Nation should pursue only after careful thought and consideration.

For example, if people want to talk about the issue of the first World Trade Center trials, that is a fair example to discuss. When the ranking member, Senator Hatch, suggests that there was secret information about the structure of the building and information about the building, the question isn't simply do you take a leap then and assume that you have to use a military tribunal. The first question should be: Could that information have been adequately protected in a regular court through our laws, for example, under the Classified Information Procedures Act and other bills? That should be the first question.

I want to say that I am certainly not happy about the fact that that information came out in that trial. That was obviously a mistake. But that does not allow a leap to assuming that you have to go wholesale to a military tribunal approach. It means you have to use the protections that are provided under current law.

If it turns out that the evidence suggests that that is not adequate, so be it. Then I would join with the chairman and talk about the need to do something else. But I think it is far too easy to suggest that simply because a mistake was made there it can't be addressed under our current system.

In that context, I just want to briefly express my alarm at the failure of the Department of Defense to appear before the committee today. The Department of Defense was invited to appear before us today, but I understand that the Department of Defense declined to appear. I would note that this committee has already heard from the Department of Justice on the issue of military commissions, and today we will hear from the Department of State. But we have yet to hear from the Department of Defense. And that is the Department which has the primary authority under the President's Order for the creation and administration of the commissions.

I am very concerned by this lack of meaningful consultation, and I do hope that representatives of the Department of Defense will appear before us in the future to discuss these important issues. I thank you, Mr. Chairman.

Senator SCHUMER. Thank you, Senator Feingold.

Senator FEINSTEIN. Could I make a brief statement?

Senator SCHUMER. Certainly. Senator Feinstein, who has been an active and diligent member of this committee.

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thank you very much, Mr. Chairman, and I, too, thank you for these hearings. I think they are extraordinarily important that if we do go into the military tribunal, we go in with an understanding of exactly what is going to take place.

I for one think the goal of the tribunal is a good one: swift, fair, full justice, without revealing national secrets or making a courthouse into target for terror.

To read some of the critics, it would appear that these tribunals will not be limited to the most visible or heinous terrorists. Instead, even a long-time resident alien in the United States could suddenly be thrust before a secret tribunal of military officers, and with no opportunity to appeal, the individual could be sentenced to death by a mere preponderance of the evidence and by just two-thirds of the tribunal members present at the time. This would indeed be of deep concern and deeply troubling. I don't know whether this is accurate or not. I hope the witness will clarify it. But this is important to flesh out, I think, at this hearing.

Just to be very brief, Mr. Chairman, I hope that the Bush administration will work with the committee and the full Congress as it moves forward in this analysis. I, too, have read Judge Gonzales' article. I, too, have read Professor Tribe's article. I think both present some very interesting views which we need to press a little further on to be sure that we know the confines and the context in which these tribunals will be held.

Senator SCHUMER. Well, thank you, Senator Feinstein. I thank all the members here. You can see the broad range of views but, more importantly, the many questions. And just, again, when I heard Senator Hatch's statement, I thought he was saying to even ask any questions about this is wrong. I was glad at the end he backed off that because I think that would be totally inappropriate. And that is what we are here to do. There are so many questions, such as the Senator from California has answered, who these apply to, what the rules are, et cetera. And I think most of us believe that there is a need for some kind of tribunal. We are beginning the questioning process and the fleshing-out process right now, and I appreciate that.

I want to introduce our first witness. The Honorable Pierre-Richard Prosper serves as the Ambassador-at-Large for War Crimes Issues at the Department of State. He received his B.A. from Boston College, his J.D. from Pepperdine University School of Law. Prior to his appointment, Ambassador Prosper served between 1999 and 2001 as special counsel and policy adviser in the Office of War Crimes Issues. He was detailed to the State Department from the Justice Department, where he served as special assistant to the Assistant Attorney General for the Criminal Division. From 1996 to 1998, Ambassador Prosper served as war crimes prosecutor for the United Nations International Criminal Tribunal for Rwan

da. Before that he prosecuted cases as an Assistant U.S. Attorney in California.

Before you begin, Ambassador Prosper, I want to let you know, and everyone else here, that we did invite, as Senator Feingold mentioned, the Department of Defense to send representatives to this hearing. We thought it was important to have them here since they have been charged with drafting the regulations for the commissions. Many of the details and questions we have can be answered by them, and, unfortunately, the Defense Department refused to send a witness. I think that doesn't serve the purposes they seek, which is in gaining-in coming to the right conclusion because they are debating it right now, and I hope that they will in the future be more willing to address this committee and this subcommittee.

With that, Ambassador Prosper, that does not say we are not grateful and honored that you are here, in addition, and thank you for being here. Your entire statement will be read into the record, and you may proceed as you wish.

STATEMENT OF HON. PIERRE-RICHARD PROSPER, AMBASSADOR-AT-LARGE FOR WAR CRIMES ISSUES, DEPARTMENT OF STATE, WASHINGTON, D.C.

Ambassador PROSPER. Thank you. Mr. Chairman, members of the committee, I thank you for this opportunity to speak with you regarding the Military Order issued by the President on November 13th in response to the tragic events of September 11th. The events remind us that we must vigorously pursue justice to ensure that the acts not go unpunished.

Mr. Chairman, members of the committee, I come before you as Ambassador-at-Large for War Crimes Issues and also as a former prosecutor. Prior to my appointment to this post, I spent 10 years in the trenches as a line prosecutor. As a deputy district attorney in Los Angeles, I prosecuted hundreds of cases and tried dozens of murder cases and multiple murder cases as a member of the Hard Core Gang Division. As an Assistant United States Attorney, I prosecuted and investigated sophisticated international drug cartels trafficking tons of cocaine into the streets of Los Angeles. And as a lead prosecutor for the United Nations International Criminal Tribunal for Rwanda, I successfully prosecuted, in a 14-month trial, the first-ever case of genocide before an international tribunal under the 1948 Genocide Convention.

With this experience, I recognize, understand, and truly believe that there are different approaches that can be used to achieve justice. I recognize that different procedures are allowed and that different procedures are appropriate. No one approach is exclusive, and the approaches need not be identical for justice to be administered fairly. But in all approaches, what is important is that the procedures ensure fundamental fairness. And that is what the President's Order calls for.

After the tragic events of September 11th, we as a Nation were forced to reexamine our traditional notions of security, our conceptions of our attackers, and our approaches to bringing to justice the perpetrators. The conventional view of terrorism as isolated acts of egregious violence did not fit. The atrocities committed by the Al

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