I believe Congress should seize this historic opportunity to investigate with care but with dispatch, and then to craft an integrated legislative package that protects individual freedoms while permitting, if truly necessary, a form of secure tribunal in which to try suspected war criminals who pose a particularly virulent threat. While I believe such tribunals may well be justifiable in extremely limited circumstances in which, among other things, the laws of war have been violated, we must be clear that facile distinctions between terrorists who kill our people with nefarious schemes incubated in caves located far across the seas, and those who do so by carefully hatching plots in the comfort of our cities, concealing themselves as civilians while they plan monstrous acts of mass murder, are worth very little in the larger scheme of things. Bin Laden, and the leader of the terrorist cell of aliens living in our midst after gaining lawful entry to this country who proceeded to turn our world upside down on September 11, are cut from the same cloth.

We must keep in mind, too, that the vast majority of individuals who may be subjected to scrutiny because of their previous affiliation with or support for terrorist organizations are guilty of at most run of the mill crimes, crimes properly punished in civilian court. We must not make martyrs out of petty criminals. Far better to show our foes that American justice will survive their assault than to sacrifice our core values through hasty overreaction.

This, then, is our Korematsu: the choices we face now-as then-are difficult ones. But I believe that Congress can rise to the occasion, resist the undue consolidation of power within the executive branch, and secure our freedom and our safety alike, requiring no more compromise of our liberty than is genuinely essential-and then only in ways that respect equality. These are the better angels of our nature to whom I bid Congress listen today.

Senator SCHUMER. Thank you, Professor Tribe, for excellent testimony.

Senator Hatch has to leave and wanted to make a final comment, so I am going to give him the prerogative of the ranking member and former chairman role.

Senator HATCH. Well, thank you, Mr. Chairman. I do have to leave, and I want to apologize to your other witnesses, because you are all important to me.

And I want to personally congratulate you, Professor Tribe. We have been together on a lot of occasions, on a lot of issues, and we have conflicted and we have been together as well. Much of what you have said I think is very profound and worthwhile for Congress to listen to.

Mr. TRIBE. Thank you.

Senator HATCH. And I just wanted to personally compliment you on your article in "The New Republic" as well as what you have said here today. I am not sure I agree with every point, but IMr. TRIBE. I would worry if you did, Senator.

Senator HATCH. You should never say anything like that. [Laughter.]

Mr. TRIBE. Well, I think we all have slightly different views. Senator HATCH. That is right. I am just kidding. But much of what you have said has been very informative, as has Mr. Terwilliger's, and I am sure the rest as well. But it has also been helpful to the Committee, as you always have been. So I just wanted to tell you that.

And apologize to the rest of you, because I respect each and every one of you, and I apologize for having to leave. Thank you. Senator SCHUMER. Thank you, Senator Hatch.

Our next witness is retired Major General Michael Nardotti. He graduated from West Point and from Fordham University School of Law, a native New Yorker as well. He is a decorated combat veteran. He served for over 28 years as a soldier and as a lawyer in the army. Most recently he served as the Judge Advocate General

from 1993 to 1997, and as the Assistant Judge Advocate General for Civil Law and Litigation from 1991 to 1993. Since 1997 he has been a partner with the D.C. law firm of Patton Boggs.

Thank you for being here, General Nardotti. Your entire statement will be read in the record.

STATEMENT OF MICHAEL J. NARDOTTI, JR., MAJOR GENERAL (RETIRED), FORMER ARMY JUDGE ADVOCATE GENERAL, AND PARTNER, PATTON BOGGS LLP, WASHINGTON, D.C.

General NARDOTTI. Thank you very much, Mr. Chairman, members of the Committee. Thank you for the opportunity to contribute to the dialogue on this extremely important issue. I will be brief in my comments because it would be more useful to use as much time as possible to respond to the Committee's questions.

I must make clear at the outset that my personal view on the issue of the President's authority to use military commissions in this instance, I side with those who support the President and believe that he does have the authority to so act. I believe the more debatable and more cautionary question is how he should implement any decision to go forward with military commissions.

I have been asked to provide the Committee with some highlights of differences and similarities between the Article III courts and courts martial, and to the extent that they might apply to military commissions in an effort to enlighten the debate and extend the knowledge base of those who are participating in it with respect to the particular practices and procedures in each of those fora. In doing so, perhaps I can assist in providing a better understanding of the President's decision to consider this alternative and the possible results of the practices and procedures about which DOD will provide further elaboration later.

It goes without saying, of course, as mentioned previously by members of the Committee, that there are differences between Article III courts and courts-martial. There are differences as well between courts-martial and military tribunals, as they have been and may be conducted. The fact that there are similarities and differences is not as critical as the reasons for those similarities and differences. I believe it is important, however, to focus on one aspect of that with respect to the differences between Article III courts and courts-martial.

When you think of the people who are subject to the jurisdiction of courts-martial, the men and women who are putting their lives on the line on a regular basis in the service of the nation, I do not think anybody would be able to state that there is a group that is more deserving of whatever benefits, whatever privileges, whatever protections that we can provide for them, particularly in the judicial process where so much would be at stake. Yet we do have differences, and there are aspects of the military justice system and the manner is which courts-martial operate that would appear to accord them lesser rights.

Why is this so? Well, this is so because Congress recognized that because of the peculiar needs of the military, there is a threefold purpose in administering military justice. Not only did the system have to promote justice and be fair to soldiers, but it also had to do so in a way which would assist in maintaining good order and

discipline and promote the efficiency and effectiveness of the armed forces. Congress recognized that when a military force operates throughout the world and in environments and challenges that have no parallel in the civilian environment, resort to the courts established under Article III is not a practical or workable option. So they did the next best thing in terms of developing a system in of law, a military justice system in which the public and Congress would have confidence and which would provide justice for members of the military.

I do not believe that anyone would contest that justice as administered under the Uniform Code of Military Justice and in the Manual for Courts-martial meets due process standards. It is different, however, from the due process one would find in the Article III Federal Courts for important reasons. My statement goes into more detail about some of the important differences and similarities, but I would highlight just a few points that I believe would be of particular relevance to this Committee.

I had not heard this view expressed today, but in some of the debate that has swirled around the issue of military commissions, there has been the suggestion that those who would be brought before the commissions for justice would in no way be able to receive fairness. The assumption is that the military officers who might take part in such an endeavor would be predisposed to go in a certain direction, and that conviction would be almost a certainty. I would suggest that the historical record does not support that conclusion.

While much focus and attention has been paid to the Quirin case, conducted during World War II, the commissions that were conducted after World War II, were conducted in Germany and in the Pacific, demonstrate quite a different picture. Approximately 1,600 military commissions were conducted in Germany, and approximately 1,000 were conducted in Japan. The conviction rates of those commissions was about 85 percent. Now, that compares with a felony conviction rate in the Federal Courts of about 93 percent. Courts-martial conviction rates are about 93 percent. Now, in the Southern District of New York, Senator Schumer, the conviction rate is a little bit higher. There are tougher prosecutors up there. But I think that that statistic speaks volumes in terms of what can be done in terms of fairness. And certainly the commentary on those commissions following the war also demonstrated and supported the conclusion that they were conducted with fairness.

I would suggest, as one of the members of the Committee asked before, I believe it was Senator Hatch, mentioned, who would want to sit on a jury in judgment of the perpetrators of the events of September 11th? Another question is: could you really find a jury that would not be biased in some way? Then, look to the military example. Look at what happened in World War II where you had officers, United States Army officers, sitting in judgment of those whom they had fought against, those who had killed their colleagues or were responsible for the deaths of their colleagues in Europe and Japan. Yet, they were able to administer justice in a way that, with respect to the conviction rates shown, certainly was very reasonable and fair.

When you take that example, then, and you take the next step and say, "All right, we understand why there are differences between courts-martial and Article III Courts. What about the military commissions versus courts-martial? Why shouldn't they be one and the same?" It certainly is worth underscoring several times that courts-martial and military commissions are not one and the

same.

There is flexibility in the conduct of military commissions because they serve a different purpose. As has been compellingly argued and explained here previously, the basis for subjecting a person to the justice of a military commission is well-founded in international law and very specific in terms of the liability of someone to be placed before a commission because they have, by their actions, determined their status as unlawful combatants and made themselves subject to the jurisdiction of a commission that can administer justice more summarily than in other circumstances.

That is certainly not to suggest that because these people engaged in horrendous acts they do not deserve justice. That is not the point. One could point to many examples of criminal behavior where that might be said. Yet, we certainly do not suggest that with someone who commits a serious criminal act, the decision of how to deal with them is based on what they deserve.

The forum here is determined by what is authorized, established, and justified under international law. International law allows the President to make the decision to use this forum, a military commission, in this particular instance. And when you examine-I realize my time is up, but just to make this point further and I will certainly amplify on this in the opportunity for questions and answers-when you examine the reasons for differences with respect to the public safety, the very legitimate and sound public safety concerns, the intelligent compromise concerns, and the issues that, the problems that are inherent in gathering evidence, there certainly is a reasonable factual basis to administer justice in military commissions in a different way than other fora.

Thank you.

[The prepared statement of General Nardotti follows:]

STATEMENT OF MICHAEL J. NARDOTTI, JR., MAJOR GENERAL (RETIRED), UNITED

STATES ARMY

INTRODUCTION

Mr. Chairman and Members of the Committee, thank you for the opportunity to contribute to this important dialogue. The possible use of military commissions, as ordered by the President in his role as Commander-in-Chief of our Armed Forces, to conduct trials of non-United States citizens for violations of the law of war as described in the Military Order of November 13, 2001, concerning the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism," is a extraordinary measure in response to extraordinary events. Careful explanation of the justification and basis for this proposed action and related actions which will follow, certainly will inform the vigorous public debate. To assist in this effort, I have been asked to highlight and discuss some of similarities and differences between the prosecution of criminal matters in our Armed Forces in courts-martial under the Uniform Code of Military Justice and those matters prosecuted in Article III Federal courts. Further, I have been asked to relate these similarities and differences to military commissions as some of those tribunals have been conducted in the past and may be conducted in the future under the President's Order.

BACKGROUND

As a matter of background, I am a veteran of over twenty-eight active duty in the United States Army. Early in my career, I served as an infantry platoon leader in combat in Vietnam, and, later, in a variety of positions in the United States and overseas as a soldier and lawyer. I served as The Judge Advocate General of the Army from 1993 until my retirement in 1997. Since that time, I have been in the private practice of law in Washington, DC.

THE PRESIDENT'S PROPOSED USE OF MILITARY COMMISSIONS

Before describing the issues which will be the primary focus of my statement, I should make clear my view of the President's proposed use of military commissions to non-citizens who planned, perpetrated, or aided and abetted the attacks of September 11. Without restating the arguments previously made to this Committee in support of the President. I agree with those who believe the President, as Commander-in-Chief, has the authority under the Constitution to take these actions. The terrorist acts of the organization known as al Qaida, up to and including the horrendous attacks of September 11, 2001, leave no doubt that the United States is in a state of armed conflict with an outside enemy and that the President is most certainly correct in his conclusion that "an extraordinary emergency exists for national defense purposes." The Joint Resolution of the Senate and House of Representatives underscores this conclusion and supports the need for extraordinary action in authorizing the President, "to use all necessary means and appropriate force" against those who planned and perpetrated these acts to prevent them from committing future terrorist acts.

The use of military commissions under these circumstances is a lawful means available to the President, as Commander-in-Chief, to achieve this end. The justification for the use of military commissions is well-established in international law and the use of tribunals of this type has a lengthy history in times of extraordinary emergency in our country. Congress has recognized and affirmed their use, previously in the Articles of War, and currently in Articles 21 and 36 of the Uniform Code of Military Justice. The United States Supreme Court upheld the constitutionality of trial by military commissions of enemy saboteurs caught within the United States during World War II in Ex Parte Quirin, 317 U.S. 1 (1942). The Court's reasoning in that case with respect to the lawfulness of trying unlawful combatants-those who do not wear uniforms or distinctive insignia, who do not carry arms openly, and who do not conduct operations in accordance with the law of war-would appear to be particularly applicable to those who planned, perpetrated, or aided and abetted the attacks of September 11-acts of monumental and extreme violence against thousands of our civilian citizens.

The more debatable and critical issue may well be how the President chooses to exercise this option. The Quirin model is relevant to an extent, but it does not necessarily provide all the answers for a similar undertaking today. The Military Order of November 13, 2001, raises important issues which will need further clarification, and Administration officials have already begun to clarify some of those points. They have stressed repeatedly that the specifics of the rules to be applicable to military commissions in this instance are still under development and review by the Department of Defense. The President, nevertheless, has made certain basic requirements clear, including that there be a full and fair trial. The determination of what constitutes a full and fair trial under these circumstances should include particularly careful consideration to the extraordinary circumstances which justify the use of and compel the need for military commissions in this instance. Further, the significant evolution in the administration military justice since the Quirin decision and the extent to which that evolution should impact on the conduct of military commissions today also should be carefully considered.

The Unique Need for the Military Justice System

Before focusing on military commissions, I will explain, as a starting point, why there are differences between criminal prosecutions in Article III Federal courts and criminal prosecutions in the Armed Forces. Congress and the courts have long-recognized that the need for a disciplined and combat ready armed force mandates a separate system of justice for the military. Our Armed Forces operate world-wide in a variety of difficult and demanding circumstances which have no parallel in the civilian community. Military commanders of all services are responsible for mission accomplishment and the welfare of their troops. In the most difficult operational and training situations, they make decisions that can and do put the lives of their troops at risk. These commanders also are responsible for administering a full range of discipline to ensure a safe and efficient environment in which their troops must serve. They are able to accomplish this goal through the use of military law, the purpose