Subcommittee on Crime, Terrorism and Homeland Security,
House of Representatives
April 5, 2011
Mr. Chairman, Ranking Member Scott, and Members of the Subcommittee, I thank you for holding this hearing today, and for inviting me to testify. This hearing could not be more timely. Yesterday’s announcement vindicates this Subcommittee’s work and probably would not have happened without the real leadership exercised by members of the Subcommittee. But this hearing is appropriately meant to look forwards, not backwards.
Over the years, a strong bipartisan consensus on the use of military commissions has emerged and has become the dominant position in Washington. Even President Obama, once a critic of trials by military commission, has acknowledged that they are “an appropriate venue for trying detainees for violations of the laws of war,” that they protect our vital national security interests, and that they provide appropriate safeguards and procedural rights to those tried. I agree with the President on those points, and welcome his administration’s announcement yesterday.
But I remain concerned that the Administration is not fully supportive or invested in commissions. My message today is simple; now that the right decision has been made, stand by it, and fully resource commissions. I have three points: First, certain cases will require the use of military commissions rather than civilian courts. Second, military commissions provide robust procedural protections to defendants. And third, the administration, and this Congress should fully resource commissions to ensure their success.
Let me address each point in turn.
The first is that, for practical reasons, certain cases face hurdles to trial in civilian courts and will need to be brought before military commissions. In federal court, criminal defendants receive the full panoply of procedural and substantive rights guaranteed by the Constitution. But those guarantees were never intended to extend to enemy belligerents, and indeed, they would render effective prosecution in many cases impossible. U.S. soldiers on the battlefield, whether in the war on terror or a more conventional armed conflict, do not Mirandize enemy fighters, do not apply to magistrate judges for search and arrest warrants, and do not offer captured enemy fighters the customary opportunity to call an attorney upon being detained. The Constitution does not, of course, require that soldiers do any of these things. Nor does it require that we extend to captured belligerents the same procedural protections that apply to criminal defendants. Those requirements, however, would apply in a federal courtroom, and could derail the prosecution.
Consider, for example, the right to a speedy trial, which is guaranteed to criminal defendants by the Sixth Amendment. If the Administration tried KSM in federal court at this late date, there is a substantial risk that it would not have be able to provide a legal justification for the years of delay in bringing him to trial. Lack of political courage in making a forum selection is not a cognizable legal excuse. As a result, all charges would have been dismissed. That’s fine in a run-of-the-mill criminal trial, but in war, the stakes much higher.
Or consider the bar on most hearsay evidence, as required by the Sixth Amendment’s Confrontation Clause. In a federal court, the rule against hearsay could keep out reams of military intelligence and other reliable evidence in a terrorist prosecution—evidence that was gathered not with an eye to law enforcement but for the purpose of national defense. In military commissions, unlike in federal court, hearsay is admissible as long as the side offering the statement can demonstrate to the judge that it is reliable.
Another practical consideration is incentives. The rules of war codified in the Geneva Conventions create a set of incentives for belligerents: follow the rules and, if you’re captured, you’ll be accorded the benefits of those rules. But by trying unprivileged enemy belligerents in federal court—instead of military commissions—we reward the violation of those rules and give those belligerents greater protections than a typical lawful prisoner of war would receive. That is a dangerous policy.
Second; military commissions provide robust protections to detainees. Indeed, compare the procedural protections and rules contained in the Military Commissions Act of 2009 to standard U.S. courts-martial and other international tribunals—as I have—and you will see that today’s commissions offer unlawful combatants more robust due process and protections that any international tribunal ever created.
My third point is that now that KSM will finally be tried before a military commission, the administration and Congress must take every reasonable step to ensure that the trial is an exemplar of justice and the rule of law. This will take resources. Chief among them are the attorneys who will prosecute and defend the case—we need the very best our country has to offer. The Department of Justice should detail its top terrorism prosecutors to these cases. Although exceptionally talented, hard working and intelligent, many of the JAGs who are currently detailed to commissions simply do not have the requisite trial experience to handle a case of this complexity and weight on their own. The solution is collaboration: Federal prosecutors, once detailed as lead prosecutors to the commissions, must work with JAG prosecutors. Similarly, for the defense, the administration should ensure the learned counsel, military and federal defenders, are detailed to these cases. These are the most serious cases this country is facing; they demand its most talented, experienced lawyers on both sides of the isle.
And justice is expensive. Congress and the administration must provide ample funds necessary for both the defense and government to employ expert witnesses, travel to investigate cases and prepare for trial, and myriad other logistical matters associated with a national security case. If we do not provide full resources for this trial, justice cannot be done, and the trial will always be subject to question and doubts.
That would be an unacceptable result. The victims of 9/11 deserve justice. We have waited too long.
I thank you for the opportunity to testify, and I look forward to our discussion.