H. Rept. 111-221 - 111th Congress (2009-2010)

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House Report 111-221 - REQUESTING THAT THE PRESIDENT AND DIRECTING THAT THE SECRETARY OF DEFENSE TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN THEIR POSSESSION RELATING TO SPECIFIC COMMUNICATIONS REGARDING DETAINEES AND FOREIGN PERSONS SUSPECTED OF TERRORISM

[House Report 111-221]
[From the U.S. Government Publishing Office]


111th Congress }                                             {   Report
  1st Session  }          HOUSE OF REPRESENTATIVES           {  111-221                                                                _______________________________________________________________________
 
   REQUESTING THAT THE PRESIDENT AND DIRECTING THAT THE SECRETARY OF 
  DEFENSE TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN 
    THEIR POSSESSION RELATING TO SPECIFIC COMMUNICATIONS REGARDING 
          DETAINEES AND FOREIGN PERSONS SUSPECTED OF TERRORISM

                               __________

                                 REPORT

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                                   ON

                              H. RES. 602

                                     
                   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     

   July 23, 2009.--Referred to the House Calendar and ordered to be 
                                printed

                               ----------

                        U.S. GOVERNMENT PRINTING OFFICE 

79-008                           WASHINGTON : 2009 











                   HOUSE COMMITTEE ON ARMED SERVICES
                     One Hundred Eleventh Congress

                    IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina          HOWARD P. ``BUCK'' McKEON, 
SOLOMON P. ORTIZ, Texas                  California
GENE TAYLOR, Mississippi             ROSCOE G. BARTLETT, Maryland
NEIL ABERCROMBIE, Hawaii             MAC THORNBERRY, Texas
SILVESTRE REYES, Texas               WALTER B. JONES, North Carolina
VIC SNYDER, Arkansas                 W. TODD AKIN, Missouri
ADAM SMITH, Washington               J. RANDY FORBES, Virginia
LORETTA SANCHEZ, California          JEFF MILLER, Florida
MIKE McINTYRE, North Carolina        JOE WILSON, South Carolina
ROBERT A. BRADY, Pennsylvania        FRANK A. LoBIONDO, New Jersey
ROBERT ANDREWS, New Jersey           ROB BISHOP, Utah
SUSAN A. DAVIS, California           MICHAEL TURNER, Ohio
JAMES R. LANGEVIN, Rhode Island      JOHN KLINE, Minnesota
RICK LARSEN, Washington              MIKE ROGERS, Alabama
JIM COOPER, Tennessee                TRENT FRANKS, Arizona
JIM MARSHALL, Georgia                BILL SHUSTER, Pennsylvania
MADELEINE Z. BORDALLO, Guam          CATHY McMORRIS RODGERS, Washington
BRAD ELLSWORTH, Indiana              K. MICHAEL CONAWAY, Texas
PATRICK J. MURPHY, Pennsylvania      DOUG LAMBORN, Colorado
HANK JOHNSON, Georgia                ROB WITTMAN, Virginia
CAROL SHEA-PORTER, New Hampshire     MARY FALLIN, Oklahoma
JOE COURTNEY, Connecticut            DUNCAN HUNTER, California
DAVID LOEBSACK, Iowa                 JOHN C. FLEMING, Louisiana
JOE SESTAK, Pennsylvania             MIKE COFFMAN, Colorado
GABRIELLE GIFFORDS, Arizona          THOMAS J. ROONEY, Florida
NIKI TSONGAS, Massachusetts          TODD RUSSELL PLATTS, Pennsylvania
GLENN NYE, Virginia
CHELLIE PINGREE, Maine
LARRY KISSELL, North Carolina
MARTIN HEINRICH, New Mexico
FRANK M. KRATOVIL, Jr., Maryland
ERIC J.J. MASSA, New York
BOBBY BRIGHT, Alabama
SCOTT MURPHY, New York
DAN BOREN, Oklahoma

                    Erin C. Conaton, Staff Director










                            C O N T E N T S

                              ----------                              
                                                                   Page

Purpose and Background...........................................     1
Legislative History..............................................     2
Communications with the Executive Branch.........................     2
Committee Position...............................................     4
Committee Cost Estimate..........................................     4
Compliance with House Rule XXI...................................     4
Oversight Findings...............................................     5
Constitutional Authority Statement...............................     5
Statement of Federal Mandates....................................     5
Record Vote......................................................     5
Changes in Existing Law Made by the Bill, as Reported............     5
Additional and Dissenting Views..................................     5
111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-221

======================================================================


   REQUESTING THAT THE PRESIDENT AND DIRECTING THAT THE SECRETARY OF 
  DEFENSE TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN 
    THEIR POSSESSION RELATING TO SPECIFIC COMMUNICATIONS REGARDING 
          DETAINEES AND FOREIGN PERSONS SUSPECTED OF TERRORISM

                                _______
                                

   July 23, 2009.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

   Mr. Skelton, from the Committee on Armed Services, submitted the 
                               following

                              R E P O R T

                       [To accompany H. Res. 602]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Armed Services, to whom was referred the 
resolution (H. Res. 602) requesting that the President and 
directing that the Secretary of Defense transmit to the House 
of Representatives all information in their possession relating 
to specific communications regarding detainees and foreign 
persons suspected of terrorism, having considered the same, 
report favorably thereon with an amendment and recommend that 
the resolution be agreed to.
  The amendment is as follows:
  Strike all after the resolving clause and insert the 
following:

That the House of Representatives requests the President, and directs 
the Secretary of Defense, to transmit to the House of Representatives, 
not later than the later of the date that is 90 days after the date of 
the adoption of this Resolution or December 31, 2009, a report on how 
the reading of rights under Miranda v. Arizona (384 U.S. 436 (1966)) to 
individuals detained by the United States in Afghanistan may affect--
          (1) the rules of engagement of the Armed Forces deployed in 
        support of Operation Enduring Freedom;
          (2) post-capture interrogations and intelligence-gathering 
        activities conducted as part of Operation Enduring Freedom;
          (3) the overall counterinsurgency strategy and objectives of 
        the United States for Operation Enduring Freedom;
          (4) United States military operations and objectives in 
        Afghanistan; and
          (5) potential risks to members of the Armed Forces operating 
        in Afghanistan.

                         PURPOSE AND BACKGROUND

    On June 26, 2009, Congressman Mike Rogers (R-MI) introduced 
House Resolution 602, a resolution of inquiry. The resolution 
requests the President, and directs the Secretary of Defense, 
to transmit to the House of Representatives not later than 14 
days after the date of adoption of the resolution, copies of 
any portions of all documents, records, and communications in 
their possession referring or relating to the notification of 
rights under Miranda v. Arizona, 384 U.S. 436 (1966), by the 
Department of Justice, including all component agencies, to 
foreign persons, captured in Afghanistan, who are suspected of 
terrorism and detainees in the custody of the Armed Forces of 
the United States in Afghanistan.
    Clause 7 of rule XIII of the Rules of the House of 
Representatives provides for a committee to report on a 
qualifying resolution of inquiry, such as House Resolution 602, 
within 14 legislative days or a privileged motion to discharge 
the committee is in order. House Resolution 602 was referred to 
the Committee on Armed Services on May 21, 2009.
    Under the rules and precedents of the House, a resolution 
of inquiry is one of the means by which the House may request 
information from the head of one of the executive departments. 
It is a simple resolution making a demand of the head of an 
executive department to furnish the House of Representatives 
with specific information in the possession of the executive 
branch. It is not used to request opinions or to require an 
investigation on a subject.
    On July 21, 2009, the Committee on Armed Services took up 
House Resolution 602 for the purpose of reporting a 
recommendation to the House. House Resolution 602 was amended 
to require that the Secretary of Defense submit a plan, by 
December 31, 2009, or three months after the adoption of the 
resolution, whichever comes later, on the impact of giving 
Miranda warnings to detainees overseas has on five factors.

                          LEGISLATIVE HISTORY

    House Resolution 602 was introduced on June 26, 2009, and 
referred to the Committee on Armed Services.
    On July 21, 2009, the Committee on Armed Services held a 
mark-up session to consider House Resolution 602, as 
introduced. The committee, a quorum being present, ordered to 
be reported House Resolution 602, as amended, to the House with 
a favorable recommendation by a voice vote.

                COMMUNICATIONS WITH THE EXECUTIVE BRANCH

                             Department of Defense,
                                 Office of General Counsel,
                                     Washington, DC, July 21, 2009.
Hon. Ike Skelton,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: I write to correct a serious 
misimpression that has arisen in recent weeks, that the United 
States military may be providing Miranda warnings to terrorist 
suspects in Afghanistan. This is completely inaccurate.
    The record should be clear: The essential mission of our 
nation's military, in times of armed conflict, is to capture or 
engage the enemy; it is not evidence collection or law 
enforcement. Members of the U.S. military do not provide 
Miranda warnings to those they capture.
    Meanwhile, it has been the longstanding practice of the 
U.S. government, spanning administrations of both parties, to 
use all instruments of national power to defeat terrorist 
extremists. This has included, and will continue to include, 
the prosecution of some terrorists in Article III courts. In 
that event, U.S. law enforcement personnel have, in a handful 
of situations, been permitted to question detainees who are 
potential prospects for prosecution, accompanied by Miranda 
warnings. Such interviews, accompanied by Miranda warnings, are 
permitted by the Department of Defense only after the 
military's intelligence-gathering functions have been completed 
with respect to that detainee. These types of interviews are 
not given, and should not be given, if the military commanders 
on the ground conclude that doing so will hinder our military 
operations or intelligence-gathering efforts.
    Though the instances of ``Mirandized'' interviews of U.S. 
military detainees are few and far between, we oppose any 
legislative effort to ban them altogether. Our commanders 
themselves would say doing so is contrary to national security, 
because it would limit the option to prosecute terrorists in 
Article III courts, and jeopardize those cases that we do 
prosecute. Our government must maintain all lawful options for 
fighting international terrorism, not limit them.
            Sincerely,
                                       Jeh Charles Johnson,
                                                   General Counsel.
                                ------                                

                             Department of Justice,
                            Office of the Attorney General,
                                     Washington, DC, July 21, 2009.
Hon. Ike Skelton,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Hon. Howard P. ``Buck'' McKeon,
Ranking Member, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman and Ranking Member McKeon: I am writing 
to correct some serious misinformation about the reading of 
Miranda warnings to terrorist suspects in Afghanistan and to 
oppose efforts to curtail the appropriate and limited use of 
this practice as part of a coordinated, multifaceted strategy 
to defeat terrorism.
    It has been suggested that a new policy has been put into 
effect to read Miranda warnings to captured terrorists on the 
battlefield. This is untrue. It has been the longstanding 
practice of the U.S. government, including administrations of 
both parties, to use Miranda warnings in a very small number of 
cases in which it is important to our national security to 
ensure that statements made by terrorist suspects can be used 
in a criminal prosecution.
    The warnings are given in locations removed from the 
battlefield, and only after the military's intelligence-
gathering and force protection needs have been met. The 
decision as to whether or not to give a warning is made by 
experienced career professionals in consultation with military 
and intelligence officials. The warnings are never given if the 
professionals conclude that doing so will hinder our 
counterterrorism efforts.
    Over the course of the last two decades, Mirandized 
statements obtained from non-U.S. citizens detained overseas 
have played a critical role in winning convictions and lengthy 
sentences in terrorism cases. For example, in the 1993 World 
Trade Center bombing case and the plot to bomb U.S. airlines, 
Ramzi Ahmed Yousef was sentenced to 240 years in prison and 
Abdul Hakim Murad and Wali Khan Amin Shah were sentenced to 
life in prison. In the 1998 East African embassy bombing case, 
Mohamen Sadeek Odeh, Mohamed Rashed Daoud Al-`Owhali, Wadih El-
Hage and Khalfan Khamis Mohamed were each sentenced to life in 
prison. And in the 1985 case of the hijacking of Royal 
Jordanian Flight 402, Fawaz Yunis was sentenced to 30 years 
imprisonment.
    In these and other cases, the use of Mirandized statements 
has enabled the government to keep all options on the table, 
thus helping to ensure that those who commit terrorist acts 
against our citizens can be brought to justice and given 
lengthy sentences, whether in federal courts or military 
commissions.
    Were Congress to prohibit use of Miranda warnings, the 
government would be deprived of an important weapon against our 
enemies. Our military, law enforcement, and intelligence 
professionals must have access to all lawful instruments of 
national power to protect the country and ensure that 
terrorists are brought to justice. The judicious use of Miranda 
warnings preserves the full range of options available for 
dealing with terrorists. If Congress takes that option away, 
there will be an increased risk that those who have done us 
harm, who have killed Americans and would do so again, might go 
free.
    This is not about giving rights to terrorists. It is about 
bringing them to justice. By ensuring that any statements they 
make are admissible at trial, we help ensure that they will no 
longer be a threat to American lives and American security.
            Sincerely,
                                       Eric H. Holder, Jr.,
                                                  Attorney General.

                           COMMITTEE POSITION

    On July 21, 2009, the Committee on Armed Services, a quorum 
being present, ordered to be reported House Resolution 602, as 
amended, to the House with a favorable recommendation by a 
voice vote.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d) of rule XIII of the Rules of the 
House of Representatives, the committee estimates the costs of 
implementing the resolution would be minimal. The Congressional 
Budget Office did not provide a cost estimate for the 
resolution.

                     COMPLIANCE WITH HOUSE RULE XXI

    Pursuant to clause 9 of rule XXI, House Resolution 602 
contains no congressional earmarks, limited tax benefits, or 
limited tariff benefits as defined in clause 9(d), 9(e), or 
9(f) of rule XXI.

                           OVERSIGHT FINDINGS

    With respect to clause 3(c)(1) of rule XIII of the Rules of 
the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities pursuant to clause 2(b)(1) of rule X, are 
incorporated in the descriptive portions of this report.
    With respect to clause 3(c)(2) of rule XIII of the Rules of 
the House of Representatives, this legislation does not include 
any new spending or credit authority, nor does it provide for 
any increase or decrease in tax revenues or expenditures.
    With respect to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, the bill does not authorize 
specific program funding.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, Section 8 of the United States 
Constitution.

                     STATEMENT OF FEDERAL MANDATES

    Pursuant to section 423 of Public Law 104-4, this 
legislation contains no federal mandates with respect to state, 
local, and tribal governments, nor with respect to the private 
sector. Similarly, the bill provides no unfunded federal 
intergovernmental mandates.

                              RECORD VOTE

    In accordance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, there were no record votes taken 
with respect to the committee's consideration of House 
Resolution 602.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Clause 3(e) of rule XIII of the Rules of the House of 
Representatives requires an elaboration or description of how 
the reported bill proposes to repeal or amend a statute or part 
thereof. There were no changes in existing law made by House 
Resolution 602, as reported.

                    ADDITIONAL AND DISSENTING VIEWS

    Clause 3(a) of rule XIII requires that the report include 
all supplemental, minority, or additional views that have been 
submitted. None have been submitted by the time of the filing 
of the report.