of evidence unless the President takes contrary action within 18 months; (8) The burden of proof for conviction in both forums is beyond a reasonable doubt; (9) For conviction or acquittal in federal prosecutions jurors must be unanimous. Otherwise, a hung jury results and the defendant may be retried. In courts-martial, except in capital cases, two-thirds of the panel must agree to convict. The first vote is binding. If more than one-third of the panel vote to acquit, then there is an acquittal. A hung jury and retrial on that basis is not possible in the military. In capital cases in courts-martial, a unanimous verdict is required for conviction; (10) Sentencing in federal courts is done by the judge alone, and sentencing guidelines for minimum and maximum sentences apply. In courts-martial, sentencing is decided by the court-martial panel members or by the military judge (if the accused servicemember chose to be tried by a military judge alone). There are maximum sentence limitations but no minimums. The accused servicemember is entitled to present evidence in extenuation and mitigation, including the testimony of witnesses on his or her behalf, and may make a sworn or unsworn statement for the court-martial's consideration. Two-thirds of the panel must agree for sentences of less than 10 years. Three-quarters of the panel must agree for sentences of 10 years or more. To impose capital punishment, the panel must unanimously agree to the findings of guilt, must unanimously agree to the existence of an "aggravating factor" required for a capital sentence, and must unanimously agree on the sentence of death. Capital punishment may not be imposed by a military judge alone; (11) In federal prosecutions, appeal is permissible, but mandatory in cases of capital punishment. There are two levels of appeal-the Circuit Courts of Appeal and the United States Supreme Court. In the military, appeal is automatic for sentences which include confinement of one year or more or a punitive (Bad Conduct or Dishonorable) discharge. There are three levels of appeal-the Courts of Criminal Appeals of the military services, the Court of Appeals of the Armed Forces, and the United States Supreme Court. Sentences which do not require automatic appeal may be appealed to the Judge Advocate General of the convicted member's service; (12) Appellate representation in federal prosecutions is provided if the convicted person is indigent. In the military, appellate representation is provided in all cases regardless of financial status.

This comparison of the relative handling of pretrial, trial, and post-trial matters, respectively, in Article III Federal courts and courts-martial is not exhaustive. It demonstrates, however, that even in accommodating the needs unique to the administration of military justice, courts-martial, in many important respects, compare very favorably, even though not identically, to process and procedures accorded in the Article III federal courts.

COURTS-MARITAL AND MILITARY COMMISSIONS

Just as there are sound reasons for differences in rights, practices, and procedures between Article III Federal courts and courts-martial, there also are sound reasons for differences between courts-martial and military commissions. Courts-martial and military commissions, of course, are not one in the same. Courts-martial are the criminal judicial forums in which members of our Armed Forces are prosecuted for criminal offenses, the vast majority of which are defined in the Uniform Code of Military Justice. Congress and the President have given continuing attention to the development and growth of the Military Justice System to ensure that in seeking to achieve "good order and discipline in the armed forces [and] to promote efficiency and effectiveness in the military establishment," justice is also served in the fair treatment of soldiers, sailors, airmen, and marines.

Military Commissions serve a distinctly different purpose and have been used selectively in extraordinary circumstances to try enemy soldiers and unlawful combatants, among others, for violations of the laws of war. In the case of 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- their actions and conduct determine their status and the type of action which may be taken against them as a result. Those who entered our country surreptitiously and who planned, perpetrated, or aided and abetted the attacks of September 11, causing death and destruction on an unprecedented scale, engaged in an armed attack on the United States in violation of customary international law. Their actions and offenses under the law of war allow them to be treated differently from lawful combatants and others who violate the criminal law.

Military commissions are the appropriate forum for dealing with these unlawful combatants. To reiterate the earlier-stated justifications, the use of military commissions is supported by international law, there is lengthy historical precedent for their use, the United States Supreme Court has upheld their use in similar_circumstances, Congress has recognized and affirmed their use in the Uniform Code

of Military Justice and in the predecessor Articles of War, and the extraordinary emergency which the President has declared and Congress' support to the President in its Joint Resolution authorizing him "to use all necessary means and appropriate force" where there have been egregious violations of the law of war all compellingly support this conclusion.

The question of the rules and procedures to apply remains, nevertheless. While the President has determined that, "it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts," the appropriate principles and rules of procedures prescribed for courts-martial may still serve as a useful guide. The propriety of these principles and rules should be measured against the legitimate concerns for public and individual safety, the compromise of sensitive intelligence, and due regard for the practical necessity to use as evidence information obtained in the course of a military operation rather than through traditional law enforcement means. Further, the principles and rules adopted also should take into account the evolution, growth, and improvement in the administration of criminal justice, in general, and of military justice, in particular, in determining the standards to apply with respect to the most compelling issues, such as those relating to the imposition of capital punishment.

I am confident that the President and the Department of Defense are mindful of the exceptional significance of these issues, and that they will take them into careful account as further decisions are made.

Mr. Chairman and Members of the Subcommittee, I am prepared to answer your questions.

Senator SCHUMER. Thank you very much, General Nardotti. Again, the testimony has just been excellent here.

And now let me move to our fourth witness. It is Professor Cass Sunstein. He is the Karl Llewellyn Professor of Jurisprudence at the University of Chicago Law School. He is a member of the University Political Science Department as well. Graduated from Harvard College, Harvard Law School, clerked first for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court and then Justice Thurgood Marshal of the U.S. Supreme Court.

Before joining the University of Chicago Law faculty, he worked as an attorney adviser in the Office of Legal Counsel at the U.S. Department of Justice. He too is the author or numerous books and articles on topics such as constitutional law and democracy.

Professor Sunstein, welcome once again before this panel, and your entire statement will be read into the record.

STATEMENT OF CASS R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED SERVICE PROFESSOR OF JURISPRUDENCE, LAW SCHOOL AND DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF CHICAGO, CHICAGO, ILLINOIS

Mr. SUNSTEIN. Thank you, Mr. Chairman. It is a pleasure to be here.

These comments will be really a response to Senator Sessions' invitation, which is to try to give some details about how to make the process work better. The starting point for these remarks is that many of the abstract debates within the nation over the last weeks can be reduced and possibly even dissolved I think if we proceed to the level of detail. The suggestion is that the legitimate interest behind the President's Military Order can be accommodated, while also producing what the President wants, which is full and fair trials.

I am going to make three very simple suggestions. The first is that the scope of the Military Order is intended to be narrow, notwithstanding some of its loose language and steps should be taken

to narrow the scope to respond to some worries that American citizens have.

The second suggestion, beyond the issue of scope, is that the Order ought to be implemented with attention to the essentials of procedural justice, essentials that can be obtained by looking_carefully at the best of our practice after World War II. The third suggestion is that steps ought to be taken to ensure neutrality with respect to the adjudication by attending closely to the composition of the adjudicators on the military commissions and perhaps by building in mechanisms for appeal.

Now to these three issues of scope, essentials of procedural justice and neutrality. The Military Order was obviously written under tremendous time pressure, and it is clear that the Executive Branch and the President do not intend to apply its terms to all those to whom it could be applied by its terms. The President has clarified, through his agents, that the laws of war are what concerns him, and the President indeed suggests that the constitutional authority that the President has under this Order applies to the use of military commissions when the laws of war have been violated. The laws of war are not violated by lawful combatants such as by the Taliban soldiers who were not involved in terrorist activities. The laws of war are violated when someone is engaged in attacks on civilian populations or in secret infiltration within the boundaries of the United States. If it is clarified that we are talking only about the laws of war, then in one bold stroke, the scope of the Order will be significantly narrowed.

The second suggestion I have with respect to scope is it is clear that the President intends to apply this Order, rarely if at all, to people who are arrested or charged inside the territorial boundaries of the United States. Even with respect to noncitizens, it is not the President's general intention to apply military commissions to people who have done evil deeds here. There is a narrow exception, which is if people have infiltrated the United States in order to foment or assist terrorist activities within the United States, if they are effectively spies, then the Military Order might apply to them. But at least as a strong presumption, this Military Order is not intended to cover people arrested within our boundaries.

A simple suggestion, that is, that the scope of the Order would be narrowed greatly if we understand that the laws of war are what are at stake and if foreign combatants outside our territorial boundaries are the people for whom we are mostly interested in using military commissions. This sort of clarification, now beginning informally, should be made formally, either by the Executive or by the Congress. If that is the case, then we will be going very close to the sort of action that President Roosevelt authorized after World War II.

The second suggestion is that the essentials of procedural justice should be specified, preferably by the Executive Branch quickly, even better by Congress acting with the Executive Branch. We could clarify the essentials of procedural justice by building on the best of our practices after World War II. This catalog has not been given in any document of which I am aware, but if we look through what we actually did, we can get some pretty good and specific guidelines. As a bare minima, the ideas are, first, a defendant

should know the nature of the charge against them. They should know as well the basis of the charge against them, and they should have a right to reasonable rules of evidence. Now, there might be some restriction on their knowledge of the basis of the charge against them in those narrow circumstances in which providing it would compromise legitimate security interests, but for the most part, just providing the nature and basis of the charge would give defendants in these tribunals, as in Federal Courts, a significant amount of what due process requires.

The second essential procedural fairness is a right to be defended by counsel and a chance to defend and respond to the evidence made, invoked against the defendant. So long as there is a right to be defended by a vigorous advocate and a chance to defend one's self by responding to charges, there will be a significant safeguard against what everyone wants to avoid, that is, false convictions, a very specific and narrow idea.

The third idea is a strong presumption in favor of public trials, at least public trials in the form of publicly-available transcripts, made available, perhaps, on the day that the trial occurred. Something of this general sort occurred after World War II, where the trials were compiled by transcript and are available right now. You can get them tomorrow if you like to see exactly what happened. Of course, when security interests are at stake, some parts of the trials might not be made public, but the vast majority of it has been in the past and should be in the future, as the White House Counsel has indicated.

The fourth simple suggestion is that there should be here, as everywhere else, a presumption of innocence, a particular part of the written and unwritten law of all civilized societies, and a standard of conviction beyond the preponderance of the evidence standard. All this means is that in civil trials, preponderance of the evidence is the appropriate standard; in criminal trials you need something a little tougher.

With respect to the neutrality of judges, we need not rely only on military judges, though no one should accuse them of bias or partiality. We might use state or Federal judges, as indeed were used in the aftermath of World War II. There is no reason to restrict the President's pool to military personnel if he wants to have a diversity of judges. We could also build in mechanisms of appeal. In fact, by using state and Federal personnel, either in an informal or a formal capacity to ensure that the rudiments of procedural fairness have been met.

By way of conclusion, when terrorism threatens national security, the nation's priority is to eliminate the threat, not to grant the most ample procedural safeguards to those who have created it. But it should be possible to respond to the President's legitimate concerns, while also complying with the basic requirements of procedural justice. There is no conflict between the war against terrorism and ensuring fair trials.

[The prepared statement of Mr. Sunstein follows:]

STATEMENT OF CASS R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED SERVICE PROFESSOR OF JURISPRUDENCE, LAW SCHOOL AND DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF CHICAGO

Mr. Chairman and Members of the Committee:

I am grateful to have the opportunity to appear before you today to discuss some of the issues arising from President Bush's decision to provide for military commissions as one option for trying suspected terrorists. President Bush has strongly emphasized the need to ensure that defendants receive "full and fair trials." Military Order of November 13, 2001, section 5(c)2. In these remarks, I explore ways to do what everyone agrees is most essential to protect national security and to defeat terrorism-while also ensuring basic fairness in the relevant trials. There is no reason to doubt that sensibly designed procedures can be fair and at the same time promote the President's basic goals: to ensure expeditious trials, to avoid a "circus" atmosphere, and to keep sensitive information confidential.

I offer three basic suggestions, designed not as definitive solutions but as potential steps in the right directions. First, the President's order is intended to have a narrow scope, and steps should be taken to clarify and specify its anticipated range. Second, principles of procedural justice, adapted for the specific occasion, should be established for military commissions, so as to ensure against inequity and false convictions. Third, measures should be taken to ensure against the reality or appearance of unfairness in the relevant trials, perhaps through use of federal or state judges on military commissions, and perhaps through the creation of certain mechanisms for appellate review, either formal or advisory, by relatively independent officials.

SHARED GOALS AND CONCERNS

There has been detailed discussion of the constitutionality of President Bush's military order of November 13, 2001. For present purposes I will assume, without discussing the point, that the order does not violate the Constitution. See Ex Parte Quirin, 317 U.Š. 1 (1942). I will not engage the policy questions raised by the President's decision. I will also assume what is generally agreed: From the standpoint of both constitutional law and democratic legitimacy, it is far better if the President and Congress act in concert.1 As a general rule, the executive branch stands on the firmest ground if it acts pursuant to clear congressional authorization. With this point in mind, my major topic is how best to respond to a question raised both here and abroad: how to ensure (a) that people will be convicted in military tribunals only if they are guilty, and (b) that everyone will receive the basic justice to which the President, the Attorney General, and their various critics are simultaneously committed.

Some people appear to fear that military commissions, simply by virtue of their status as such, will not be capable of providing fair trials. But this fear, and the contrast between civil and military tribunals, should not be overstated in this setting. In the past, there have been numerous acquittals in military tribunals. Perhaps remarkably, both German and Japanese defendants were acquitted in the aftermath of World War II. In any case civil courts would pose risks of their own: entirely neutral justice would not be altogether easy to assure for suspected terrorists, tried before an American jury.2 On the other hand, it would be wrong to dismiss the concern of those who are troubled by the idea of military trials in this context. History suggests that war crimes tribunals do not always provide fair procedures and indeed that there is inevitably some danger of a miscarriage of justice. See Evan Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials, 37 Colum. J. Transnat'l L. 851 (1999); In Re Yamashita, 327 U.S. 1 (1946). We do not have to say, in advance, that this is a serious risk in order to conclude that measures should be taken to reduce it. The key question, then, is how to design a system that will not compromise American security interests, but that will nonetheless ensure basic fairness. I outline several possibilities here.

LIMITING THE SCOPE OF MILITARY COMMISSIONS, FORMALLY OR INFORMALLY An obvious possibility would be to limit the scope of military tribunals, either formally or informally, by making it clear that the discretion arguably authorized by the President's order will allow the use of military tribunals only on certain essential occasions, and not in every case in which the order's requirements might be met as a technical matter.

1To be sure, the President has a range of powers under the Commander-in-Chief clause, and these powers enable him to do a great deal on his own. But the boundaries of that authority remain untested. See, e.g., Ex Parte Quirin, 317 U.S. 1, 29 ("It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation.").

2 Imagine, for example, a trial before a jury in New York, or Chicago, or Washington, D.C., or Los Angeles. Of course the defendant could waive the right to a jury trial.