Good morning. Chairman Specter and Ranking Member Leahy, thank you for having me here today.
The Department of Justice’s first priority remains protecting America from terrorist attacks. Immediately after 9-11, the President asked us to do everything we could, within the law, to protect the American people. Those were intense, purposeful times. We were anxious about the possibility of more attacks, and we were committed to preventing another deadly attack.
In Congress, you acted quickly to pass the Patriot Act. In the Executive Branch, we increased our efforts to investigate and prosecute terrorists before they could kill again – and bring to justice those who were responsible for 9-11.
When the war in Afghanistan began, we asked: How can terrorists and unlawful combatants be tried for their war crimes? That’s how the military commission process was born in this current conflict.
Since the Revolutionary War, the United States has employed military commissions in times of armed conflict to bring unlawful combatants to justice. The process of convening military commissions traditionally has been left to the President. Thus, following the precedent established by prior Administrations, the President established fair and thoughtful commission procedures.
Of course, the Supreme Court has now spoken. Under the Court’s reasoning in the Hamdan case, the most obvious and feasible way to ensure that military commissions remain available as a tool to protect America and bring terrorists to justice is for Congress to establish the commissions’ procedures, and so we now look forward to working with Congress on this issue.
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As we work together to establish a statutory basis and new procedures for military commissions, I’d like to offer a few specific concepts for you to consider.
First, the military commission procedures devised by the Department of Defense, as well as the Uniform Code of Military Justice, are useful resources to consider DoD’s current procedures carefully address in a balanced fashion specific concerns. For example, no one can expect members of our military to read Miranda warnings to terrorists captured on the battlefield … or provide terrorists on the battlefield immediate access to counsel … or maintain a strict chain of custody for evidence. Nor should terrorist trials compromise sources and methods for gathering intelligence, or prohibit the admission of probative hearsay evidence. The current DoD military commissions take into account these situational difficulties, and thus provide a useful basis for Congress’ consideration of modified procedures. The procedures Congress adopts must be fair, but also must reflect that we are still at war and that our men and women on the front lines operate in a war zone, not in the controlled environment of an FBI forensics lab.
Second, we must eliminate the hundreds of lawsuits from Guantanamo detainees that are clogging our court system. In many instances, military commissions, not our civilian courts, are the appropriate place to try terrorists. In the Detainee Treatment Act, Congress recognized the need for balance in this area. It afforded detainees the opportunity to appeal military commission decisions and Combatant Status Review Tribunal rulings to the D.C. Circuit, as well as to the Supreme Court of the United States – something never before provided to enemy combatants in a time of war. At the same time, the DTA precluded Guantanamo detainees from undertaking other litigation, including class actions, tort suits, and conditions of confinement challenges. The DTA struck an appropriate balance; I ask Congress to confirm that it intended these provisions for limited and appropriate judicial review to apply to all of the existing Guantanamo detainee lawsuits.
Third, the application of common Article 3 of the Geneva Conventions must be defined. In Hamdan, the Supreme Court held that because the war with al Qaeda is not of an international character, common Article 3 applies to our conflict with al Qaeda – notwithstanding the fact that al Qaeda is not a signatory to Geneva and does not abide by its strictures. Because common Article 3 applies to our conflict with al Qaeda, it is imperative that we – as a Nation – are clear about exactly what that requires of our men and women on the front lines. After all, a proven violation of common Article 3 could serve as the basis for a potential prosecution under the federal War Crimes Act.
Article 3 uses terms like, quote, “outrages upon personal dignity,” that are susceptible to different interpretations. Making matters more unpredictable still, the Supreme Court has stated in other contexts that American courts, when interpreting a treaty, should give consideration to the way foreign courts have interpreted that treaty. That degree of uncertainty is unfair to our men and women on the front lines, and I encourage you to clarify the law in this area.
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Now let me say a few words on another subject related to the war on terror.
Recently the media has published details of classified intelligence programs that are vital to our national security. It is wrong that someone would reveal intelligence activities that are helping to prevent another terrorist attack on America. American lives are potentially endangered by such conduct.
The programs that have been disclosed are vital. Imagine, for example, what a program like the President’s Terrorist Surveillance Program might have accomplished before 9-11. Terrorists were clustered throughout the United States preparing their assault, communicating with their superiors abroad. What might our world look like today if we had intercepted a communication revealing their plans? Or tracked the flow of money among the plotters? General Hayden has testified that the Terrorist Surveillance Program has helped us detect and prevent terror plots in the United States and abroad. And Treasury Undersecretary Stuart Levey has testified that the Terrorist Finance Tracking Program has helped to identify, track, and pursue suspected foreign terrorists – including members of al Qaeda, Hamas, and Hezbollah.
Mr. Chairman, at my last appearance before the Committee, you indicated that you wanted the Terrorist Surveillance Program briefed to every Member of the Intelligence Committees, and you expressed your desire that the program be submitted to the Foreign Intelligence Surveillance Court. All members of the House and Senate Intelligence Committees now have been briefed. And your new draft legislation provides a way for the program to be submitted to the FISA Court. I thank you for your work on this matter, and I also thank Senator DeWine for offering legislation on the program. I urge this Committee to report favorably both the Specter and DeWine bills, so that they can be considered by the Intelligence Committee.
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Finally, I urge the Congress to confirm Ken Wainstein to head the Department’s new National Security Division; Alice Fisher to head the Criminal Division; and Steve Bradbury to head the Office of Legal Counsel.
The National Security Division – something called for by the WMD Commission – cannot be established until Mr. Wainstein is confirmed. Congress created the National Security Division in the Patriot Act Reauthorization bill, but the Senate’s delay in confirming Mr. Wainstein is preventing the Department from doing everything we can to protect the American people from another terrorist attack.
Similarly, we need Ms. Fisher confirmed. To have the Criminal Division – which is devoted to disrupting terrorism, fighting corporate and public corruption, and fighting child exploitation – operate without a confirmed leader is unacceptable. She is doing an outstanding job and she deserves swift confirmation. I thank the Committee for reporting favorably the Wainstein and Fisher nominations, and I ask for your help in obtaining the full Senate’s confirmation of these stellar individuals.
Finally, I respectfully request that the Committee move promptly to report favorably Steve Bradbury’s nomination to be Assistant Attorney General for the Office of Legal Counsel. Mr. Bradbury’s work is critical, and I know that the Executive Branch and the Congress have benefited from his extraordinary talents.
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Mr. Chairman, today is September 12th for the people of the Department of Justice. And tomorrow will be September 12th again. We are fighting – every single day – for the security and safety of Americans. We appreciate your support and the support of this Committee. Thank you.
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