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 a 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

Qaeda organization at the World Trade Center in New York, at the headquarters of our Department of Defense, and in Pennsylvania were of the kind that defied the imagination and shocked the conscience.

These atrocities are just as premeditated, just as systematic, just as evil as the violations of international humanitarian law that I have seen around the world. As the President's Order recognizes, we must call these attacks by their rightful name: war crimes.

President Bush recognized that the threat we currently face is as grave as any we have confronted. While combating these war crimes committed against U.S. citizens, it is important that the President be able to act in the interest of this country to protect the security of our citizens and ensure that justice is achieved. He has repeatedly promised to use all the military, diplomatic, economic, and legal options available to ensure the safety of the American people and our democratic way of life. The President should have a full range of options available for addressing these wrongs. The Military Order adds additional arrows to the President's quiv

er.

Should we be in a position to prosecute bin Laden, his top henchmen, and other members of Al Qaeda, this option should be available to protect our civilian justice system against this organization of terror. We should all ask ourselves whether we want to bring into the domestic system dozens of persons who have proved they are willing to murder thousands of Americans at a time and die in the process. We all must think about the safety of the jurors, who may have to be sequestered from their families for up to a year or more while a complex trial unfolds. We all ought to remember the employees in the civilian courts, such as the bailiff, the court clerk, and the court reporter, and ask ourselves whether this was the type of service they signed up for-to be potential victims of terror while justice is pursued. And we all must think about the injured city of New York and the security implications that would be associated with a trial of the Al Qaeda organization.

With this security threat in mind, we should consider the option of military commissions from two perspectives. First, the President's Military Order is consistent with the precepts of international law. Second, the military commissions are the customary legal option for bringing to justice perpetrators of war crimes during a time of conflict.

The Military Order's conclusion that we are in a state of armed conflict deserves some comment. Because military commissions are empowered to try violations of the law of war, their jurisdiction is dependent upon the existence of an armed conflict, which we have.

It is clear that this series of attacks against the United States is more than isolated and sporadic acts of violence or other acts of a similar nature. Rather, a foreign, private terrorist network, with the essential harboring and other support of the Taliban-led Afghanistan, has issued a declaration of war against the United States. It has organized, campaigned, trained, and over the course of years repeatedly carried out cowardly and indiscriminate attacks.

Tracing the criminal history of this organization further confirms that we are in a state of armed conflict. A decade's worth of hostile

statements by bin Laden over and over and over again state that he is at war with the United States. He has instructed his followers to kill each and every American. We should also consider the intensity of the hostilities and the systematic nature of the assaults. Consider the fact that Al Qaeda is accused of bombing the World Trade Center in 1993 and attacking U.S. military service personnel serving in Somalia in that same year. Consider that bin Laden and Al Qaeda are accused of attacking and bombing the embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. Remember that Al Qaeda is accused of perpetrating last year's bombing of the U.S.S. Cole. And, of course, added to this history are the horrifying and unprovoked air assaults on the Twin Towers in New York, the Pentagon, and the airplane tragedy in Pennsylvania.

It is clear that the conduct of Al Qaeda cannot be considered ordinary domestic crimes, and the perpetrators are not common criminals. One needs to look no further than the international reaction to September 11th to see that it was perceived as an armed attack against the United States. NATO's North Atlantic Council declared that the attack was directed from abroad and invoked Article V of the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. The Organization of American States, Australia, and New Zealand activated similar mutual defense treaties. The UN Security Council in a series of resolutions recognized our inherent right to self-defense and labeled terrorism as "one of the most serious treats to international peace and security." And this Congress, in a joint resolution, authorized the use of all necessary and appropriate force in order to prevent any future acts of international terrorism.

Mr. Chairman, members of the committee, we are at war, an unconventional war conducted by unconventional means by an unprecedented aggressor. Under long-established legal principles, the right to conduct armed conflict, lawful belligerency, is reserves only to states and recognized armed forces or groups under responsible command. Private persons lacking the basic indicia of organization and the ability or willingness to conduct operations in accordance with the laws of armed conflict have no right to wage warfare against a state. In waging war, the participants become unlawful combatants.

Because the members of Al Qaeda do not meet the criteria to be lawful combatants under the law of war, they have no right to engage in armed conflict and are unlawful combatants. Because their intentional targeting and killing of civilians in time of international armed conflict amount to war crimes, military commissions are available for adjudicating their specific violations of the laws of war. As the U.S. Supreme Court unanimously stated in Ex Parte Quirin, "by universal agreement and practice, the law of war draws a distinction between. . .those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but, in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."

In this campaign against terrorism, it is important that the President have the full range of available forums for seeking criminal accountability against persons for their individual and command responsibility for violations of the law of war. The military commission provides a traditionally available mechanism to address these unconventional crimes.

Military commissions have been utilized and legally accepted throughout our history to prosecute persons who violate the laws of war. We have heard of some of the domestic examples that have been stated here today, but they are also used in the international arena with deep historical roots. The international community has utilized military commissions and tribunals to achieve justice, most notably at Nuremberg and in the Far East. The tribunals which tried most of the leading perpetrators of Nazi and Japanese war crimes were military tribunals. These tribunals were followed by thousands of Allied prosecutions of lower-level perpetrators under the Control CounciL Law No. 10.

By the end of 1958, the Western Allies had used military tribunals to sentence 5,025 Germans for war crimes. In the Far East, 4,200 Japanese were convicted before military tribunals convened by the United States, Australian, British, Chinese, Dutch, and French forces for their atrocities committed during the war.

Today, the commissions as envisioned by the President in the Military Order, while different from those found in our Article III courts, are in conformity with these historical precedents and the world's current efforts to prosecute war crimes through the ad hoc United Nations International Criminal Tribunals for the Former Yugoslavia and Rwanda. To help understand this, it may be helpful for me to articulate some commonalities. Like its predecessors, in the Nuremberg and the Far East International Military Tribunals, the Allied Control Council Law cases, and the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the judges sit as both triers of fact and law. In addition, decisions such as judicial orders, judgments, and sentences are reached by a majority vote and not unanimity. In all of the above proceedings, including the Military Order, evidence of probative value is admitted. And in the United Nations International Criminal Tribunals for the Former Yugoslavia and Rwanda, proceedings have been and are authorized to be closed, just as is contemplated in the President's Order.

Mr. Chairman, members of the committee, since September 11th I have been asked about our criticisms of foreign military tribunals. And I want to say in these cases what the United States Government has done is to criticize the processes and not the forums themselves. Also, since September 11th I have been asked why not create an international tribunal. In our view, the international practice should be to support sovereign states seeking justice domestically when it is feasible and would be credible, as we are trying to do in Sierra Leone and in Cambodia. International tribunals are not and should not be the courts of first redress, but of last resort. When domestic justice is not possible for egregious war crimes due to a failed state or a dysfunctional judicial system, the international community may, through the Security Council or by con