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Prepared Remarks of Attorney General

Alberto R. Gonzales
on the Military Commissions Act of
2006
at the German Marshall Fund
October 25, 2006
BERLIN, GERMANY

Thank you. I welcome this opportunity to engage in a dialogue with you about the
legal challenges that the United States, and our allies in Europe, have faced in
fighting terrorism against al Qaeda and its allies.

On September 11, 2001, the world stood witness with shock and horror to images of
planes turned into missiles, flying into the World Trade Center and the Pentagon,
murdering thousands of innocents. Those images, as well as subsequent images
from London, Madrid, Bali and elsewhere have left an indelible mark on citizens
throughout the world, and they have fundamentally shaped how the United States is
responding to the threat from international terrorism.

When the enemy is willing to sacrifice their own lives to attack our citizens, when
their cause is nothing less than territorial domination and a return to the barbarity of
the Dark Ages, and when the cost of each tactical success for the enemy is measured
in the hundreds and thousands of innocent lives lost, then we face something
fundamentally different from crime—we are at war. Every resource of our Nation,
including law enforcement, the military, and the intelligence services, must be
directed at preventing future attacks before they occur.

By its activity both before and after 9/11—and by its own statements—al Qaeda is
clearly in a state of armed conflict with the United States and its allies. The action
taken following 9/11 by the United States and its allies in invading Afghanistan was
a clear recognition of that state of armed conflict. I recognize that many countries
now believe that the conflict is concluded, but the United States does not. Rather,
we believe that as al Qaeda has scattered, the battlefield has widened.

There is a fundamental disagreement between the U.S. and some of its allies as to
whether we are still at war. But my main point today is that just because the U.S.
still believes a state of war exists, that does not mean that the rule of law has no
place. To the contrary, it means that a different set of rules is applicable. I hope to
be able to explain today how we preserve the rule of law in fighting this conflict.

We believe that, as part of this war, and in order to defend the security of our
citizens, as well as the lives of citizens of Europe, we must have the ability to detain
and remove terrorists from the battlefields of this conflict; to collect from them the
vital intelligence that enables us to capture their associates and break up future
terrorist plots; and to create effective and fair procedures that will allow us to
prosecute and punish captured terrorists for their war crimes.

The legal doctrines directed at achieving these ends are not the same as those we
would employ during peacetime. The United States Supreme Court has recognized
this in several of its decisions, including its recent Hamdan decision. The United
States Congress likewise has endorsed this view, most recently in the Military
Commissions Act of 2006.

Over the past five years, the United States and its allies can point to a number of
successes in our fight against terrorism. Our intelligence-gathering efforts were
instrumental in capturing dozens of Osama bin Laden’s closest henchmen, including
the mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, as well as Abu
Zubaydah and Ramzi bin al Shibh. And the capture of those terrorists has led to
actionable intelligence that has disrupted many other terrorist plots through both law
enforcement and military operations.

We have broken up a cell of 17 Southeast Asian terrorist operatives being groomed


for attacks inside the United States; uncovered key operatives in al Qaeda’s
biological weapons program – including a cell developing anthrax to be used in
terrorist attacks. We have stopped planned strikes on U.S. Marines in Djibouti, and
on the U.S. consulate in Karachi, and we have foiled a plot to hijack passenger
planes and fly them into Heathrow Airport and Canary Wharf in London.

As we know, just this summer, British investigators thwarted an al Qaeda plan to


blow up airplanes bound for the United States with common household liquids that
could be smuggled aboard in passengers’ carry-on luggage and assembled into
bombs once onboard.

These successes, and the vigorous prosecution of the armed conflict with al Qaeda,
have undoubtedly made us safer, but we cannot delude ourselves. We are not yet
safe. Accordingly, we are continuing to work with our allies to identify new ways to
contain and combat the ever-changing threat of terrorism.

Today, I would like to address one such way—the Military Commissions Act. This
new American law provides for the full and fair trials of captured terrorists;
reinforces and clarifies United States obligations under the Geneva Conventions;
and buttresses our ability to gather vital intelligence and disrupt future terrorist
attacks.

The Detention of Enemy Combatants

With respect to our international obligations, the United States provides individuals
detained as enemy combatants at Guantanamo with greater legal rights than those
owed to lawful prisoners of war under the Geneva Conventions. As many of you
know, the Third Geneva Convention requires that, where there is any doubt
regarding a belligerent’s status as a prisoner of war, the detaining power must bring
the individual before an “Article 5” military tribunal to determine whether the
individual warrants the enhanced privileges of prisoners of war. The Geneva
Conventions otherwise provide that enemy combatants may be detained for the
duration of the hostilities, a fundamental precept of the law of war.

The United States goes well beyond these international obligations in the course of
this present conflict. As President Bush has stated, the United States has no interest
in serving as the world’s jailer, and we have no interest in detaining individuals who
do not threaten our citizens. Accordingly, we have released alien enemy combatants
to their home countries where those nations have agreed that they will prevent such
individuals from returning to combat, and where we have been assured that those
nations will treat such individuals humanely. Indeed, we have repeatedly asked our
European allies to join us in these efforts by agreeing to take back their citizens
detained at Guantanamo or by helping persuade other countries to provide better
security and human rights assurances to allow us to increase the number of
transfers. But despite demands that Guantanamo be closed, the United States has
received little help from our European allies regarding the fate of these detainees.

We also put in place procedures to ensure that the individuals we detain are, in fact,
enemy combatants. The United States gives Article 5-like “Combatant Status
Review Tribunals” to every detainee held at Guantanamo to determine whether they
should be detained as an enemy combatant at all. Based on the decisions of these
tribunals and based on our parallel efforts to repatriate detainees where appropriate
and consistent with our national security, we have transferred approximately 340
individuals from Guantanamo.

The legal rights afforded to detainees do not stop there. Our law provides that each
and every detainee has the opportunity to appeal the determination of the Combatant
Status Review Tribunal to the federal court of appeals in Washington, D.C. In other
words, the United States provides every detainee at Guantanamo Bay the
opportunity to challenge his detention not merely before a military tribunal, but also
before a civilian court.

These points, it seems to me, are lost in the recent debate over the Act’s restrictions
on habeas corpus, which allows an individual in police custody to seek his release
from detention before a civilian judge. Indeed, the entire debate is premised on
several misconceptions. First, habeas corpus is a civilian remedy. Alien enemy
combatants captured outside the United States have never had the right to file a writ
of habeas corpus under the United States Constitution in prior armed conflicts.
Thus, the restrictions on habeas corpus do not, and cannot, deprive enemy
combatants of any constitutional right that they have ever had under United States
law.

Second, as I have explained, the United States already provides enemy combatants
with the opportunity to challenge the legality of their detention before a civilian
court, by appealing the determinations of our Combatant Status Review Tribunals.
This process—which goes well beyond what is required for lawful prisoners of war
under both international and domestic law—provides the same opportunity to get
into federal court that these individuals would claim through the writ of habeas
corpus.

Although some critics have focused on detention, the Military Commissions Act is
fundamentally about prosecution. The law permits the prosecution of suspected war
criminals before military commissions, which have been used during times of war
by the United States and other countries. By law, these commissions can be used to
try only “unlawful enemy combatants.” This definition expressly excludes lawful
prisoners of war, and it is carefully defined to include only those unlawful
combatants who have taken active and purposeful steps to further hostilities against
the United States and its allies not those who may provide an incidental or
unintended benefit to the enemy.

Some have questioned why terrorists should be tried as war criminals in the first
place. Although the law of war permits us to detain dangerous enemy combatants
for the duration of hostilities to keep them from attacking us, we also believe that
we must have the capability to bring them to justice for their crimes. Some ask, why
not then try these terrorists in civilian courts just like any other individual who
commits a crime? Here again, this view reflects a fundamental denial of the
existence and the practicalities of this armed conflict.

In the War on Terror, members of al Qaeda are not merely common criminals. Al
Qaeda seeks to employ weapons of mass slaughter as a means of achieving political
goals against both the civilian and military capacity of the United States, Europe,
and our allies throughout the world. Their members continue to fight our Armed
Forces on battlefields across the world, and they will continue to do so until we stop
them. Their crimes are nothing less than war crimes.

For hundreds of years, the United States and other nations have used military
commissions—not civilian courts—to try enemy combatants under such
circumstances. Article 84 of the Geneva Conventions provides that lawful prisoners
of war must be tried by military, not civilian, courts. It is entirely fitting that we
continue to do so, consistent with our obligations under both international and
domestic law.
Equally as important, military commissions are necessary because in many cases,
the use of civilian courts would simply be unavailable or impractical. The collection
of evidence and the prosecution of terrorists pose a host of difficulties not
associated with the civilian justice system. For example, our civilian courts in the
United States strictly limit the introduction of hearsay statements, that is, the
admission into evidence of the assertions of individuals not present in court. Yet
many whose statements we will need for military commissions are likely to be
foreign nationals who are not subject to the jurisdiction of a United States tribunal,
or who may be unavailable because of military necessity, incarceration, injury, or
death. Therefore, if we are to put terrorists on trial, military commissions must be
permitted to hear a broad range of evidence, including hearsay evidence where it is
reliable. International war crimes tribunals, such as the International Criminal
Tribunal for the former Yugoslavia, have similarly adopted broad rules of
admissibility.

Finally, our civilian justice system provides for strict rules governing the collection
and authentication of evidence. But battlefields and foreign terrorist safe houses are
not like typical crime scenes, and the United States military cannot be expected to
gather evidence like police officers in the course of fighting the enemy. Again, like
international war crimes tribunals, military commissions will consider a broad range
of evidence—all evidence that the military judge deems to be reliable and probative
of the guilt or innocence of the accused.

Protections Afforded by Military Commissions

Although military commissions are both necessary and appropriate, let me


emphasize that they are also venues in which the accused will receive a full and fair
trial. The procedures for military commissions, like those of international war crimes
tribunals, are adapted to wartime circumstances, but they contain all of the
procedural protections that we in the international community regard as
fundamental.

Consider the specific protections afforded by the legislation Congress enacted:

The trial itself will be presided over by an independent military judge, drawn
from among the same judges who preside over the courts-martial of U.S.
troops, and whose impartiality is protected under law.

The accused shall be presumed innocent unless and until the prosecution
proves his guilt beyond a reasonable doubt—the highest standard of proof
recognized under U.S. law.

The accused shall have the right to examine and respond to every piece of
evidence—including classified evidence—that is introduced before the trier of
fact.
The world community, too, shall have the right to see the evidence and
observe the proceedings, because, with a narrow exception for national
security, all trial proceedings shall be open and public.

The Act plainly and unequivocally bars all evidence collected through torture,
as under domestic and international law. The United States does not engage in
torture, and consistent with our law and practice, no evidence obtained by
torture shall be admitted at a commission proceeding.

For statements of the accused, the law further provides that the judge may
admit such evidence only if he finds that the statements are reliable and that
their admission would serve the interests of justice. This rule tracks closely
Rule 95 of the International Criminal Tribunals for the Former Yugoslavia
and for Rwanda, both of which require an inquiry into the reliability of the
evidence and its impact on the integrity of the procedures.

The law does not, as some have charged, require the admission of
coerced evidence. Rather, it simply provides that an impartial judge
shall determine under the circumstances whether the evidence is fit to
be considered by the trier of fact.

In addition to these protections at trial, the Act grants convicted terrorists


several opportunities to appeal, both to a military review court and to a
civilian court of appeals. The Supreme Court also may exercise jurisdiction to
review commission judgments. As in the detention context, this access to our
domestic courts is another extraordinary protection in the history of armed
conflict.

Implementing the Geneva Conventions

The Military Commissions Act thus establishes military commissions in compliance


with the law of war, which includes the Geneva Conventions. The Act also contains
critical provisions to clarify the meaning of those Conventions.

I do not believe the Geneva Conventions were drafted with the threat of al Qaeda in
mind. The drafters of the Conventions understood armed conflict as a choice
between two models: international conflicts between nation-states and civil wars
within a single State. And last summer, our Supreme Court held that Common
Article 3 applies to our conflict with al Qaeda.

Common Article 3 has been part of the Geneva Conventions since 1949, yet some of
its provisions, such as its prohibition upon “outrages upon personal dignity,” are not
well-defined. What constitutes an “outrage upon personal dignity” or “humiliating
and degrading treatment”? International law provides relatively few precedents, and
the law which did exist suggested that courts could reach widely varying
conclusions. The United States takes its treaty obligations seriously, however, and
indeed, we had previously made any violation of Common Article 3 a war crime.
The Military Commissions Act reinforces the commitment of the United States to
Geneva by providing clarity to the meaning of its terms under our domestic law.

The Act clearly defines nine “grave breaches” of Common Article 3. These include
things like murder and torture—all of which were already illegal under United
States law, and none of which America has ever condoned. These also include clear
and undeniable outrages upon personal dignity, such as rape, sexual abuse, and the
performing of human experiments.

Beyond the floor set by these provisions, the Act then provides that the President
may issue regulations concerning our understanding of the Geneva Conventions for
conduct that falls short of a “grave breach”—for example, conduct that constitutes
an “outrage[] upon personal dignity” or “humiliating and degrading treatment.”
These regulations will be public, and therefore open to congressional and public
scrutiny.

Conclusion

I close with a reminder that Germany and the United States are great nations, but
neither will succeed in defeating terrorism without the help of the other, and the
help of other friends and allies. Though there may be differences in approach, our
objectives are the same. It is important that we continue to dialogue, to discuss, to
educate. Our friendship is based on trust, and trust is based on understanding and
understanding based on communication. Germany and other European countries
have more experience dealing with terrorism. I am sure there are lessons we can
learn from you. And I hope in our discussions you may learn some things as well.

Germany and the United States have taken great strides in fighting terrorism, but
there is still much work left to do. For those of us who work at the United States
Department of Justice, everyday is September 12, 2001. Everyday is that day after.
Everyday requires renewed commitment to combating and preventing terrorism.
And everyday we will look to the Government of Germany and to the German
people as our partner in making the world a safer place for our children and
grandchildren.

Thank you.

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