. the united states and the case arising out of detroit were declared the warrant was lawyer talks on constitutional the sixth circuit side or there was no standing [inaudible] views as a way of avoiding the citing of questions and the supreme court questions and the supreme court in the united states did not at this point after a lot of your speculation and a lot of discussion, we do not know whether the president's power in commander of chief under article article 2 justifies warrantless wiretapping or the provisions of foreign intelligence surveillance acts. what you press to have the case coming out of the san francisco federal court go to the green deacons pinker fer decisions? >> we have not decided what we are going to do at this point with the decision that was made by the judge the focus there had been not necessarily as much on the legality of the tfp as protection of sources and methods and a determination as to what we are going to do to the adverse ruling we got from the chief judge has not been made. we are considering our options. >> what do you think? >> i think i haven't made up my mind yet. we have to see the impact will be. this program i guess ended in 2007, 2006. mauney view is that to the extent that -- i can't get into too many operational things but the support of congress, the authorization of congress to conduct these kinds of programs is the way in which the knicks ticket of branch should operate. it is when the executive branch is at its strongest when we have the foundation is when we work with members of congress to set up these kind of programs and especially when one looks at as you've pointed out, you know, the requirements under fisa so i think we will have to consider what our options are and try to understand what the ramifications are in the judge's ruling in the case >> i would urge you to make up your mind to get a decision. i filed a bill to compel the supreme court warrantless wiretaps congress obviously can't tell the supreme court how to decide a case that we can deal with the jurisdictional issue and as we look to the next round of nominations i think one of the big areas of failing by the court is in this refusal to take up cases and make decisions. they do not serve in the case involving the questions or immunity where the victims of survivors of victims of 9/11 were suing with strong evidence going very high up into the government of saudi arabia and the congressional determination will immunity would not apply in that kind of a situation and the court by deciding not to decide is a very differential which the executive power. i think that when we are looking for new nominees went to the court we are looking to the chief justicew))xk roughly the citizens case involving corporations that have political campaigns is illustrative of. i want to pick up one of the questions which senator whitehouse and i asked about the miranda warning some. the impact of not getting the miranda warning as is widely misunderstood. if there and the warnings are not given all that it means is that the statements made by the subject of interrogation can't be admitted into evidence against him in an article 3 court. but when you dealt with somebody like the christmas day donner you didn't really need admissions or confession the evidence was overwhelming and when we talk about the subtleties of interrogations i find it hard to accept that the assistance of establishing reports bond by the interrogator with the subject would be sufficiently enhanced to pour into giving the mayor mandel warnings as a disc richard for making statements that by the time you get through singing you have the right to remain silent anything you say -- there are five of them and you get this waivers. but that is a big discouraging factor. so it would be my hope that the warnings would not be given. the most important thing in dealing with a terrorist is to get information to prevent future not contacting the individual. if you had to make, in my view, if you have to make a truce between convicting and getting information which might preclude his subsequent terrorist attack with all of the information. but is what you're saying to the policy of the department to make a judgment on the specific case as to whether to give more in the warnings or not that you leave it up to the interrogator and his judgment is that this report will be established but to not to determine all cases are miranda mornings? .. and they don't know exactly what is going on at that point but even so, they did not give miranda warnings and that initial interaction with them. so i am looking for flexibility but with the thought that, when it comes to terrorism the gathering of intelligence is of critical importance. >> i am glad to hear that, that you are not doing it automatically and the gathering of intelligence is the more important factor. >> thank you mr. chairman. it is good to see you in that chair, even though from a different side of the aisle then i am familiar with. it is in the middle, isn't it? i think your comments about miranda are right, except i would have to little cautionary comments. one is, senator graham asked you what was going to happen if somebody arrested bin laden, would they give miranda rights he did not give a clear answer but that person is not likely to be able to check with you at that moment. we need a policy, number one. number 2, according to the miranda rule, as soon as a person is taken into custody, they are supposed to be advised of their rights before questions are asked. via ei the i policy is in the manual and that is what they mir specter has suggested that when you tell an individual their right to have a lawyer, they have a right to remain silent and you will bring them one but you are going to get less actionable intelligence than if you didn't do so. in fact, the first thing a good lawyer is going to say is don't talk. you may have to make a plea bargain later and other things may happen in the fact that some people do cooperate ultimately does not affect the rules, the basic fact. realistically you are going to get less information from that procedure, and that is why that is a big part of the reason that many of these cases need to be handled through military commissions and military custody. i will let you respond to that. >> senator, maybe i was not clear. with regard to bin laden there would be no need to give bin laden a rather warnings and if i was not clear there, i meant to be. if he were captured i cannot foresee any reason. >> mr. holder, your presumption is and you are on report that they would be tried in civilian court, and why wouldn't you give miranda warnings? >> unless you are going to try him in military commission? >> the concern with miranda warnings is whether or not the information might be excluded. we have sufficient statements from bin laden so there is no reason to mirandized; you can still bring his case -- not. >> i acknowledge that that is possible but for abdulmutallab on christmas day, like you said one of the agents know about the strength of the case and there is a doctrine that says if the improperly obtained information as a result of not getting miranda warnings can poison the entire prosecution and raise questions and create many defenses that would not otherwise exist. so i think in the rule, to me simply would be that you expect these terrorist individuals to be tried and taken into military custody and is in the true and isn't it appropriate that after they have been taken into military custody, if you chose to try them in civilian court, you could still do so? >> i suppose that is true but i think there is. >> we have another member-- number of times, have we not? being we have done it a couple of times. >> what about collegiate ahamed? you declared him ready to go to trial and court. that is a fact. military custody and then you can try them at your auction in civilian court. >> what i've been trying to say is that. >> why wouldn't that be the right way to start the case and have a policy for every fbi, every police officer in every tsa airport official to again, to not give miranda warnings and not provide free attorneys to people who are attacking the united states of america? >> lets look at what happened with regard to the detroit bomber, abdulmutallab. the fbi agents who have a polity that when people are taken into custody give miranda warnings. they had the presence of mind given their experience and given the concern they have been given the knowledge of the law to understand in that initial interaction they did not have to give him his miranda warnings in the information they got from him can be used in the a trial against him under >> well, i don't know if the public said the exception goes to 50 minutes -- have you ever had a case go that long? have you ask somebody if they have a gun, or i have a bomb, but after a while that exception ends. >> given the experience and that set of facts, i think that the federal government has acted appropriately here. the statement from the mint would be admissible. >> well i'm saying that a defense lawyer would make that point. >> well, i'm sure, but there would lose it in my court. >> this is really significant. let me say about how we got to this point. my friend senator dick durbin, a democrat, is so eloquent, but president bush -- the first case that came up was padea. that was before military commissions had been established. he established military commissions and the supreme court found them lacking, and the defense department stopped and had to rewrite rules. during that period of time through 2006 the congress passed legislation to effectuate the military commissions. in late 2006, that was. then it took time for the rules to be written and to move for it. -- to move forward. antánamo that were going to be tried. all of them didn't have to be tried. but they would be tried by a military commission and khalid shake ahamed's case was already proceeding as a military commission, was it not, tell president obama his first act was to stop that. >> the case had been proceeding in a military commission and a halting fashion and the decision the obama administration made was to put a hault to those things so that the commission procedures could be amended and congress passed those in 2009. >> you had a to a commission and you cochaired the commission to decide what to do when you concluded that even though they had already been arrested and already detained at guantánamo, there would be a presumption that they would be tried in civilian court and not by military commission. has that been change? >> no, that has not been change. the presumption we used, that i use along with secretary of defense and all the people who work with us, the protocol we were given did have a presumption in it. >> i would just say it is not exactly a clean slate and you decide each case based on the facts of that case, you have got a presumption in favor of civilian trials. speak it is a rebuttable presumption and there are a variety of other factors we take into account is not the least of which is at the end of the day, in which form can reap the most effective and i think the test is what we have done which is to say with regard to a think it is five or six cases that the military commissions are the best places for them to be tried. >> we have a letter that came in on march 16, a few weeks ago, from the department of defense, the deputy director that there were no military commissions in 2009. pursuant to an air-- order, a change in policy by president obama as soon as he took office and prosecutors then sought continuances in each case that were already referred to a military commission. and the convening authority seeks referring to charges to military commissions. to my knowledge that has not been changed, has its? >> know i believe but i believe we are going to be making the determination as to where the case up to go. it is our intention to use military commissions as well as article iii courts again with the whole notion of being flexible, pragmatic and aggressive. >> i think that is fair to say you have made some individual determinations on cases and some of these are record cases, financing of terrorism and supported terrorism and pieces that could be easily handled in these boards but it is clear to me made a firm decision to go the other way to civilian court or virtually all of these cases and it is an error. i hope that you will review that and i hope the new york case will be the beginning of a reevaluation of that policy. >> i actually think in terms of the decisions that are made back in october, november, then in terms of the number of individual cases opposed to the number of defendants that we actually sent more cases to the military commission then i did to the article iii courts. >> thank you senator sessions. senator graham. >> thank you mr. chairman and i think exchange between the two senators has been a pretty good fleshing out of the complexities of the situation we find ourselves in. but i want to try, if i can, to use some scenarios here to reassure people that the system needs to be improved but not completely by any means broken. if a military member stumbles on osama bin laden or some high target in afghanistan, pakistan or you just named the location, no one is arguing at that moment in time that they are going to read him his rights. what they would do as i understand it is if they would capture him pursuant to military operations which is not require mirandizing the enemy prisoner. obviously turn them over to intelligence organizations. that would be the case right? >> we have the high-value interrogation group designed especially for high-value. >> this goes to senator sessions.. i think he is right on point here. i want to compliment you. i think it is a great organization to have. as i understand it is a collaborative group of people who will be the primary interrogation team on a high-value target is captured within the united states or outside the united states. >> that is correct. 's been their primary purpose is intelligence gathering? and they will be able to assess what the individual knows about any operation? then they will decide if and when to mirandized, which is absolutely fine with me. >> part of the process. >> his lungs was there with the idea that the initial purpose is to gather intelligence and i think that is your college he with the hague that they will assist the detainee in terms of what they know about the war. is that correct? >> the high-value detainees are people who we think their primary value to us is to learn about targeting structure, a whole variety of them is. >> under the love for it is lawful to interrogate somebody. we are obviously not torturing people but we have the authority to do that. i think that is quite frankly-- i don't want to micromanage congress to tell an age and what to do and when to do it, as long as we are reviewing the suspects not as a normal criminal threat that a part of a military threat trying to find out what they know. what additional rights would a detainee have if any, if they were transferred from guantánamo bay cuba to say illinois? with the transfer of a location create more rights for the detainee than if they were left at guantánamo bay? >> that is a question that i think is has not really been answered yet. it is one we are not sure about. i think certainly as an advocate i would argue that there are not other rights that would necessarily ascertain but it is not clear how the courts are going to rule. >> i think that is a very good point in this is a situation where congress could help give the courts clarity. is that correct? >> i think that is correct. >> as a matter fact judge lambert at hogan has been in their habeas corpus and in that asking for congressional help and even reading those opinions. i have never seen a judge so open about congress because of if they detainee has ordered release by the judge tejeda be as petition is granted, what happens next? do we have to release the united states if we can't find a third country, what do we do with them? >> there is no requirement they be released into the united states invents those instances where we have decided not to appeal in that release has occurred they have typically been taken to a third country. >> what if you can't find a third country that will take one of these people? what do we do? >> they do not have to be released and they would remain in custody while efforts to try to find the location. >> let's play this out. habeas corpus and is meaningless if they cannot eventually result in release. is that true? >> i would not say that. it gives the possibility to a detainee, a possibility he can be relocated and that would not [inaudible] >> you would hope that you would be able to come up with. >> would you agree it would be helpful if congress spoke about a case like this to give some guidance to the judge's? >> i think it could be helpful although i think i have, on a cautionary note, congress can provide guidance except in those areas where a judge to make the determination that what the judge is doing is unconstitutional. >> i totally agree and we are in a dilemma as a nation here and i do worry about the international community. i wanted to be more open to the idea of what we were doing to make sense but great richness change their criminal laws to allow people to be held for up to a year without trial. is that correct? >> i think the courts of kind of pushed back a little bit. >> i totally agree and i think we have the right theory here that if you are an enemy combatant in the wild boar ticks over because there is no provision interest-- domestic criminal law to hold anybody without trial? >> held incommunicado, even-- the courts have not really--. >> if you are going to be charged with a crime i think you need to have have your day in court but if you join the enemy force, i am willing to give you your day in court and you should not have joined al qaeda. as i understand that every member of al qaeda that you hold as an enemy combatant will appear before a federal judge in the habeas corpus eating's. >> if they see kb's review. >> it is up to them but if they want their day in court the judge has to agree with the government that the evidence is compelling, reliable and legally obtained to hold them as an enemy combatant. both of us are trying to work with a system that has an ongoing review because the enemy combatant determination could he a de facto life sentence. >> well,. >> at the judge rules for the government, we believe that he should have an ongoing review process, an annual review process and i want to complement the administration. i think what you all are doing their make sense of there is an annual review of this person status because the enemy combatant determination could be a de facto life sentence because this war is not going going to end anytime soon. there will never be a formal surrender so it it is an accommodation we are trying to make in sort of a hybrid system. what i would like to do is try to get this committee to work with you to deal with what happens when a habeas corpus and is granted, institutionalized an ongoing review process so we can look at anybody in the world in in the eye and say no one in american military prison and has held arbitrarily. they have independent judicial review and if every military commissions verdict is appealable to be system. is that correct under the military laws we have? >> i believe that is correct. >> it is so there is article iii review of our military commissions. there is article iii review of our enemy combatant determinations and obviously if you go into an article precourt you have article iii ownership there so what i'm trying to establish with your help is tha