ceive the death penalty based on 51 percent of the evidence? Do you or do you not, you, just you, personally? Attorney General ASHCROFT. I am not going to try to develop a set of rules or regulations on that evidentiary standard or other standards at this time. That is the responsibility of the Secretary of Defense in regard to this very serious matter, and I would expect him to very carefully make judgments in this arena. I, personally, have not given that the kind of thought, at this moment, to say what exactly I would do were I to have the responsibility, which I do not have. Senator EDWARDS. Now you just mentioned a provision in the order that says that the conviction can occur on a two-thirds vote, as opposed to a unanimous vote. Does that mean that under this order, if there is a three-person tribunal, that somebody could be convicted, receive the death penalty and be executed based upon a 2-to-1 vote? Attorney General ASHCROFT. I would believe that this states a minimum standard in its direction to the Secretary of Defense. It means that two out of three of the triers of fact have to come to a conclusion before a sentence could be imposed. Senator EDWARDS. Which means that if the tribunal is composed of three people, the case is presented, two of the three say that the death penalty should be imposed, one says it should not, it could be imposed, and the person could be executed; is that what you are saying? Attorney General ASHCROFT. If you are talking about a twothirds rule, and if that is the rule that eventually is adopted by the Secretary of Defense, two out of three is two-thirds. I agree with that. Attorney General ASHCROFT. U.N.-sponsored tribunals allow conviction on a simple majority, like the ones at The Hague and the ones that are litigating and adjudicating the atrocities against those in Central Africa, and it seems to me that— Senator EDWARDS. Excuse me, Mr. Attorney General, do those allow the death penalty? Attorney General ASHCROFT. I do not know. Senator EDWARDS. I do not believe they do. Let me ask you one last area, the area of the whole question of appeals. We have seen in our court system-which most of us believe is one of the best, if not the best, in the world-over the last 2 decades, people who, based on later-found evidence, DNA evidence, for example, have absolutely been found to not have been possible that they committed the crime. The White House counsel has said that a challenge can be made to the jurisdiction of the Court. Now you and I understand that the jurisdiction is very different than whether, in fact, the person committed the crime, whether they are guilty, whether evidence should have been admitted that would have shown that the person could not have committed the crime, all of those issues that go to the basic question, which I think most Americans are concerned about, about these kinds of issues, is did this person do it? Did they, in fact, do what they have been accused of doing? Do you believe that there needs to be a process that allows some appeal that looks at the fundamental question of how the trial was conducted, whether evidence was properly considered by the Court, and whether, in fact, there was evidence that was not considered by the Court that would have shown this person, in fact, did not do it, did not commit this crime? Attorney General ASHCROFT. In the President's order to the Secretary of Defense to develop procedures here, I believe there is adequate latitude for the Secretary of Defense to develop a potential and a framework for— Senator EDWARDS. And is that something you believe should be done? Attorney General ASHCROFT. I believe that the President and the Secretary of Defense, both according to the order, constitute appellate authorities, and I think those appellate authorities are consistent with systems that provide the kind of justice that is less likely to have error. Senator EDWARDS. The President and the Secretary of Defense are the people who decided the prosecution should be brought in the first case. Do you believe there needs to bean objective third party that looks at the trial, looks at the conviction, looks at the imposition of the death penalty, if that, in fact, has occurred, and looks at whether it should have happened? Attorney General ASHCROFT. The Secretary of Defense would have the authority to develop appellate procedures under the order, military order, for the development of war commissions issued by the President. I believe that that authority is available to him, and if he chooses to confer with me about that, I will provide advice to him regarding appellate procedures. Senator EDWARDS. Do you believe, in fact, there needs to be a review, an objective review, by a third party. That is what I am asking you. Attorney General ASHCROFT. I am going to reserve my comments to provide advice to the President and the Secretary of Defense regarding any questions they have for me regarding what should be or should not be added in terms of procedures for this order. Senator EDWARDS. Thank you, Mr. Attorney General. Thank you, Mr. Chairman. Chairman LEAHY. Thank you, Senator Edwards. I think, as I hear this testimony, I think all of the more reason guidelines should be set by the Congress for military tribunals, especially on the question of preponderance of evidence, the death penalty, but I think we can do that. I would suggest that Senator Hatch, and I, and others at least have that discussion. Senator HATCH. Could I make just one last comment? I would like to read one person's defense of the military tribunal system, and let me quote it. "It is of the utmost importance that no information be permitted to reach the enemy on any of these matters. How the terrorists were so swiftly apprehended; how our intelligence services are equipped to work against them; what sources of information we have inside al Qaeda; who are the witnesses against the terrorists; how much we have learned about al Qaeda terrorist methods, plans, programs and the identity of other terrorists who might be or have been sent to this country; how much we have learned about al Qaeda weapons, intelligence methods, munitions plants and morale." "All of the testimony given at a trial bears, to some degree, upon these matters. There is no satisfactory way of censoring and editing this testimony for the press without revealing, by statement or significant omission, the answers to many of the questions which may now be puzzling our enemies. We do not propose to tell our enemies the answers to the questions which are puzzling them. The only way not to tell them is not to tell them. The American people will not insist on acquiring information which by the mere telling would confer an untold advantage upon the enemy." Now these are not my words. These are the words of Franklin Delano Roosevelt's Attorney General, Francis Biddle, in announcing the military tribunal that FDR constituted in connection with the Quirin case. Now I merely substituted "al Qaeda” for “Germany" and the word "terrorist" for "saboteur." The reason I read this is to provide some perspective. The issues we are confronting here are not new. The same issues that concern us today, concerned our forefathers during World War II, and the same reasoning that persuaded FDR to constitute a military tribunal still ring true today. So, if I could submit for the record the full remarks of Attorney General Biddle, I think it would be appropriate. Chairman LEAHY. We will close with this, just to, now that you have raised that point, note that on that tribunal, not only was there, of course, congressional authorization, but I would also point out that history has now shown the driving force behind that tribunal was to cover up the mistakes of J. Edgar Hoover at a time when he was about to receive a medal from Congress Senator HATCH. I do not believe there was congressional authorization. Chairman LEAHY. Be that as it may, this was, had there been an open trial, they would have found the evidence came from two of the saboteurs who had to beg the FBI to arrest them. I think we have a far different FBI today, a far better FBI today. I think that the Attorney General and Director Mueller deserve a lot of credit for that. General, I thank you. You have been here for almost 3 hours. You have been patient. You know there will be other questions that will be asked for you. I appreciate your comments earlier that you were perfectly willing, and even eager, to be here testify. I appreciate that. That is in the best tradition of oversight. I, also, believe you appreciate the fact that we are all united in wanting to battle terrorists. We also want to make sure all of usyou, me, and everybody else that we preserve our own liberties in doing it. With that, we thank you. We stand adjourned. [Whereupon, at 1:48 p.m., the Committee was adjourned.] Hon. Senator Schumer SUBMISSIONS FOR THE RECORD ST. MARY'S UNIVERSITY SCHOOL OF LAW Hon. Senator Sessions SENATE HEARINGS REGARDING: PRESERVING OUR FREEDOMS WHILE DEFENDING AGAINST TERRORISM Dear Senators Schumer and Sessions, The purpose of this letter is to provide a short statement to express my general support for the use of military tribunals to try suspected war criminals/terrorists who have committed grave breaches of the laws of war. I have carefully read the military order signed by President Bush. Given the fact that a current state of international armed conflict exists between the United States of America and the Taliban government of Afghanistan, military tribunals are the appropriate forums to bring to justice suspected war criminals. Specifically, these individuals would be those non-U.S. citizens who participated in the unlawful attacks on the United States on September 11, 2001, and any other non-U.S. citizens who have committed subsequent grave breaches of the laws of war-whether members of the Taliban or individuals who are harbored by the Taliban. Traditionally, the Executive Branch has employed the use of military tribunals/ commissions to try suspected war criminals for actions that amounted to grave breaches of the laws of war during war. Since the close of the American Civil War in 1865, all individuals referred to such military trials. have been non-U.S. citizens and the Executive Branch has not only established the tribunals but also the rules associated-with the operation of said military trials. Apart from "fairness" issues associated with what rules the Executive Branch (through the Secretary of Defense) may ultimately establish for the modus operandi of the tribunals in the current situation, in my professional opinion, not only is the use of military tribunals to try noncitizens who have committed grave breaches of the laws of war a Constitutional exercise of power by the Executive Branch, but I believe that the Executive Branch has the legal authority to provide for the associated rules by which these tribunals will operate. 1 am currently a Visiting Professor of Law at St. Mary's University School of Law in San Antonio, Teas where I teach a variety of topics to include National Security Law. I retired two years ago after serving for 20 years in the U.S. Army's Judge Advocate General's Corps. While in the military I worked in a variety of legal positions to include the Deputy of the International Law Division in the Pentagon, Senior Instructor in law of war issues at the Army's The Judge Advocate General's School, and the senior legal advisor for the U.S. Army Special Forces (Airborne) If I may be of any further help in this regard, please feel free to contact me at 210-431-2274, email addicottj@law.stmarytx.ecu. Very Respectfully Yours, JEFFREY F. ADDICOTT Statement of American Civil Liberties Union, Washington, D.C. The American Civil Liberties Union is a non-partisan, non-profit organization consisting of nearly 300,000 members dedicated to protecting the principles of freedom and equality set forth in the Constitution and in our civil rights laws. On September 11, thousands of Americans were brutally murdered in an audacious, coordinated attack. Our main office is only blocks away from the twin towers and our colleagues joined the terrified crowd rushing north from lower Manhattan. We recognize that the Department of Justice has a profound duty to prosecute the perpetrators and to try to protect the public against other attacks. We appreciate that this is a daunting task and that thousands of well-meaning people at the Department of Justice are working hard to accomplish this goal. The ACLU has supported many of the efforts now underway to promote security, such as recent initiatives to toughen airport security. However, we remain convinced that the government need not sacrifice civil liberties to protect the public. We can be both safe and free. This statement outlines how the conduct of the Department of Justice over the last ten weeks has undermined our most cherished rights, blunted the tools of accountability, and threatened the balance of power between the various branches of government. From the outset, the Attorney General and other spokespersons for the Department of Justice have signaled that they would not erode civil liberties in response to the September 11 attacks. Unfortunately, the actions of the Department of Justice and of other agencies acting in concert suggest otherwise. The Attorney General and the Administration have detained more than a thousand people without providing information to the media or public, written new regulations allowing for the recording of privileged conversations between attorneys and clients, proposed military tribunals without constitutional protections, and expanded the government's ability to withhold information from the public. We are deeply troubled by these actions. We hope that today's hearing is a step in the direction of Congress taking responsibility for its role in overseeing the Executive Branch and protecting our democratic government. MILITARY TRIBUNALS "We will not yield in our determination to protect the constitutional rights of individuals. Very frankly, those who attack the United States would attack the constitutional rights as well as the safety of individuals. We're going to do everything we can to harmonize the constitutional rights of individuals with every legal capacity we can muster to also protect the safety and security of individuals. It's with this in mind that we would evaluate any potential changes in the law." Attorney General Ashcroft, Press Briefing, September 18, 2001. On November 13, 2001, President Bush issued a "Military Order" providing for potentially indefinite detention of any non-citizen accused of terrorism, and permitting trial of such defendants in a military commission with no provision for judicial review. These tribunals will not be governed by the Uniform Code of Military Justice and do not contain the protections provided by the UCMJ. The order was issued without a formal declaration of war or any authorization by the Congress for the establishment of military tribunals. It circumvents the basic statutory requirement - at the heart of the compromise that was the USA Patriot Act -that non-citizens suspected of terrorism must be charged with a crime or immigration violation within seven days of being taken into custody, and that such detainees will have full access to the federal courts. The President's Military Order is unjustified and dangerous. It permits the United States criminal justice system to be swept aside merely on the President's finding that he has "reason to believe" that a noncitizen may be involved in terrorism. It makes no difference whether those charged are captured abroad on the field of battle or at home by federal or state police. It makes no difference whether the individual is a visitor or a long-term legal resident. Finally while the order applies in terms only to non-citizens, the precedents on which the President relies make no such distinction, thereby permitting the order to be extended to cover United States citizens at the stroke of a pen. The President does not have unchecked war power by virtue of his authority as Commander-in-Chief. Rather, he shares these powers with Congress. "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry." Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801). This is true whether Congress authorizes "general hostilities" by declaring war, or "partial hostilities" by authorizing the use of force in a military action short of war, as it has done here. Id. The Administration claims authority to establish military tribunals from the World War II-era precedent involving the trial of eight accused saboteurs, who landed on United States territory in 1942, shortly after the United States declared war on Germany. Their trial by military commission was upheld by the Supreme Court. Ex Parte Quirin, 317 U.S. 1 (1942). But unlike President Bush, President Roosevelt relied on the authority Congress had given him by its formal declaration of war. Id at 25-26. Roosevelt also relied on specific statutory authority permitting trials of enemy spies by military commission. This authority has since been repealed.2 The scope of the President's Order is breathtakingly broad. It applies to any individual whom the President determines he has "reason to believe" is (1) a member of Al Qaeda, (2) is in any way involved in "acts of international terrorism”—a term 1Id. at 21-23 (charging violations of Articles 81 & 82 of the Articles of War). 2 See Pub. L. No. 84-1028 (1956) (repealing Articles 81 & 82). |