Wednesday, June 15, 2005

Somethings you should read.............

Unless you're a C-SPAN junkie like me and watch boring hearings on C-SPAN3 you most likely missed this today during the Senate Judiciary Committee regarding "Detainees."

This is opening statement of Brigadier General Thomas L. Hemingway.

Just a guess here but I don't think he's a liberal........




STATEMENT OF
BRIGADIER GENERAL THOMAS L. HEMINGWAY

LEGAL ADVISOR TO THE APPOINTING AUTHORITY
FOR THE OFFICE OF MILITARY COMMISSIONS

BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE ON
DETAINEES

JUNE 15, 2005

Mr. Chairman and Members of the Committee: I am Brigadier General Thomas L. Hemingway. I am the Legal Advisor to the Appointing Authority for the Office of Military Commissions. I am pleased to discuss the operations of the Office of Military Commissions, the protections afforded accused before Military Commissions, and the current status of cases pending before Military Commissions

America is at war. This war is not a metaphorical war; it is as tangible as the blood, the dust, and the rubble that littered the streets of Manhattan on September 11th, 2001. The reality of this war could be seen in the faces of those who stood in stark horror as they saw helpless, innocent people fall and jump to their deaths from the Twin Towers. In response to the attacks on the United States on September 11, 2001, the President established military commissions to try those non-citizen members of al Qaeda and other persons engaging in specified terrorist activities who are alleged to have committed violations of the law of war and related offenses.

The use of military commissions predates the formation of our republic. Since the Revolutionary War, the United States has used military commissions to try enemy combatants for law of war violations. In the Mexican-American War, during the Civil War, following the Civil War, during and after World War II, military commissions were used to try enemy combatants for violations of the laws of war. In the President's Military Order establishing military commissions, he mandated that the accused shall be afforded full and fair trials. The President also determined that the Federal Rules of Evidence are not practicable for military commissions given the nature of the conflict. This determination is based on the unique factors present in conducting judicial proceedings against suspected war criminals at a time when the United States is actively engaged in an on-going armed conflict. Instead of the Federal Rules of Evidence, military commissions have adopted an internationally accepted standard for admissibility of evidence - probative value.

The President’s Military Order focuses on the unique factors of the current ongoing hostilities and affirms that national security interests require the continued application of US national security laws in developing commission instructions and regulations consistent with the accused's right to a fair trial. These orders, instructions and regulations afford an accused the following rights:
1. Presumption of innocence
2. Trial before an impartial and independent panel of three to seven officers
3. Notification of charges in language understood by the accused
4. Call witnesses and present evidence
5. Cross-examine witnesses and examine evidence
6. Election not to testify at trial with no adverse inference
7. Appointment of military counsel at no cost to defendant and right to hire civilian counsel at no expense to the government
8. Privileged communications with defense counsel
9. Adequate support and resources to defense counsel
10. Appointment of interpreters and translators
11. Open proceedings, except as absolutely necessary to protect national security
12. Proof of guilt beyond a reasonable doubt
13. Review of the record of trial by a three-member review panel

The rules of evidence and procedure established for trials by military commission compare favorably to those being used in the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. These rules are consistent with our national commitment to adhere to the rule of law.

The Office of Military Commissions has taken key steps in moving the commission process forward. To date, the President has determined that twelve detainees currently at Guantanamo are subject to his Order. The Appointing Authority, Mr. John D. Altenburg, has approved charges against four accused and referred these charges to military commissions for trial. Those trials commenced late in the summer of 2004. The Office of Military Commissions has been working diligently to convene military commissions; however, the trials are stayed pending an appellate court decision in the case of Mr. Hamdan. Military and civilian counsel for Mr. Hamdan brought an action in the United States District Court to review the legality of trial by military commissions. The district court recognized the authority of the President to establish military commissions to try offenders or offenses that by statute or by the law of war may be tried by military commission and a review panel as an appeals mechanism; however, the Court raised concerns about the commission process whereby an accused may be excluded from the hearing to protect classified and protected information. Because this protection is essential to the continued effectiveness in our current war on terror, the government has appealed this ruling. The delays to the commission process are directly attributable to the exercise of the accused’s ability to challenge that process in the federal courts. While the appeal is pending, investigations and submissions of charges against additional accused continue.

This is the first time since World War II that the United States has had a need to convene military commissions. While it is important to move quickly back to trial, the Office of Military Commissions’ movement forward is measured with full awareness and consideration of the rights of an accused and the needs of our Nation.

The ongoing Global War on Terrorism continues to pose many unique challenges in an asymmetrical battlefield. Neither the United States nor the international community contemplated a non-state organization having the capability to wage war on a global scale. Military commissions are the appropriate forum to preserve safety, protect national security, and provide for full and fair trials consistent with our standards and those of the international community.




There's also William Barr's opening. I'm just going to post the very first part of his. His full statement is rather long..




Testimony of
The Honorable William P. Barr

Former Attorney General of the United States

June 15, 2005

Mr. Chairman, and Members of the Committee, I am pleased to provide my views on the important issues surrounding our response as a Nation to attacks against our homeland and the continuing national security threat posed by al-Qaeda. By way of background, I have previously served as an Assistant Attorney General, the Deputy Attorney General, and the Attorney General of the United States. I have also served on the White House staff and at the Central Intelligence Agency. The views I express today are my own.

My remarks today focus on the detention of foreign enemy combatants captured during our military campaign against the Taliban and al-Qaeda and, specifically, on the adequacy of the procedures governing their continued detention as enemy combatants and, in the cases of some detainees, their prosecution before military commissions for violations of the laws of war.

It is important to understand that the United States is taking three different levels of action with respect to the detainees. These are frequently confused in the popular media.

First, as a threshold matter, the United States is detaining all these individuals simply by virtue of their status as enemy combatants. The essence of war is the destruction of the enemy’s forces – either by killing them or capturing them. When the American military captures and holds hostile forces, it does not do so as a punishment or as a prelude to eventual punishment. Our purpose is to incapacitate the enemy by eliminating their forces from the battlefield. Captured enemy forces are normally detained for as long as the enemy continues the fight.

The determination that a particular foreign person seized on the battlefield is an enemy combatant has always been recognized as a matter committed to the sound judgment of the Commander in Chief and his military forces. There has never been a requirement that our military engage in evidentiary proceedings to establish that each individual captured is, in fact, an enemy combatant. Nevertheless, in the case of the detainees at Guantanamo, the Deputy Secretary of Defense and the Secretary of the Navy have established Combatant Status Review Tribunals (“CSRTs”) to permit each detainee a fact-based review of whether they are properly classified as enemy combatants and an opportunity to contest such designation.
As to the detention of enemy combatants, World War II provides a dramatic example. During that war, we held hundreds of thousands of German and Italian prisoners in detention camps within the United States. These foreign prisoners were not charged with anything; they were not entitled to lawyers; they were not given access to U.S. courts; and the American military was not required to engage in evidentiary proceedings to establish that each was a combatant. They were held until victory was achieved, at which time they were repatriated. The detainees at Guantanamo are being held under the same principles, except, unlike the Germans and Italians, they are actually being afforded an opportunity to contest their designation as enemy combatants.

Second, once hostile forces are captured, the subsidiary question arises whether they belonged to an armed force covered by the protections of the Geneva Convention and hence entitled to POW status? If the answer is yes, then the captives are held as prisoners of war entitled to be treated in accord with the various requirements of the Convention. If the answer is no, then the captives are held under humane conditions according to the common law of war, though not covered by the various requirements of the Convention. The threshold determination in deciding whether the Convention applies is a “group” decision, not an individualized decision. The question is whether the military formation to which the detainee belonged was covered by the Convention. This requires that the military force be that of a signatory power and that it also comply with the basic requirements of Article 4 of the Treaty, e.g., the militia must wear distinguishing uniforms, retain a military command structure, and so forth. Here, the President determined that neither al-Qaeda nor Taliban forces qualified under the Treaty.

The third kind of action we are taking goes beyond simply holding an individual as an enemy combatant. It applies so far only to a subset of the detainees and is punitive in nature. In some cases, we are taking the further step of charging an individual with violations of the laws of war. This involves individualized findings of guilt. Throughout our history we have used military tribunals to try enemy forces accused of engaging in war crimes. Shortly after the attacks of 9/11, the President established military commissions to address war crimes committed by members of al-Qaeda and their Taliban supporters.

Again, our experience in World War II provides a useful analog. While the vast majority of Axis prisoners were simply held as enemy combatants, military commissions were convened at various times during the war, and in its immediate aftermath, to try particular Axis prisoners for war crimes. One notorious example was the massacre of American troops at Malmedy during the Battle of the Bulge. The German troops responsible for these violations were tried before military commissions.
Let me turn to address some of the challenges being made to the way we are proceeding with these al-Qaeda and Taliban detainees.



[snip]


Finished here......