Officials Explain Military Commissions That Will Try Detainees
By Paul Stone
American Forces Press Service
WASHINGTON, Jan. 21, 2004 Human rights organizations will closely monitor every step they take. Judicial activists will analyze everything that takes place in the courtroom. And both U.S. and international news organizations will report the day-to-day proceedings they will be a part of.
In short, the eyes of the world will be upon two retired generals working with the military commissions formed to try detainees being held at Guantanamo Bay, Cuba.
Yet despite this scrutiny despite the very controversial nature of their assignments neither Air Force Brig. Gen. Thomas L. Hemingway nor retired Army Maj. Gen. John D. Altenburg Jr. are a bit hesitant about their pivotal roles.
Hemingway retired in 1996 and was recalled to active duty in 2003, while Altenburg, who retired in 2001, is working in a civilian status with the commission.
Altenburg served for 28 years as an Army lawyer, culminating as the Army's assistant judge advocate general from 1997 to 2001. Before retiring after 31 years of service, Hemingway served as a senior judge on the Air Force Court of Military Review and as director of the Air Force Judiciary.
"I was enjoying my retired life," Hemingway said. "But the nation's at war, and when someone who has worn the uniform as long as I have is asked to serve, from my point of view there's only one answer, and that's 'I'm ready.'"
Altenburg said he accepted the assignment "because somebody needs to do this and to do this well, because it can and will affect the development of international law in general and the law of armed conflict specifically."
Altenburg is serving as the appointing authority for military commissions. Hemingway is serving as the legal adviser to the appointing authority. During a recent interview, the two generals explained their military commission roles.
Hemingway said his primary responsibility is to supervise the staff of the appointing authority. That staff will handle legal advice and logistical support for the prosecutors and defense counsel. He will also be responsible for procedures such as developing instructions and orders.
"Once these (cases) move through the system, my office will be writing advice to go to the appointing authority to make sure he has the information he needs to make an effective decision," Hemingway said. This will include advice on such matters as whether a case should be tried, or whether a case that has been tried should be sent back for rehearing.
Altenburg described his role as that of a decision-maker. "While Gen. Hemingway is responsible for putting together all the information and writing legal advice, it's my job to decide which cases go to trial, which cases will be open, and which cases perhaps because the evidence will be classified will have to be closed in part," Altenburg explained. "I would make a decision if the defense (counsel) wanted to negotiate a pre-trial agreement and plea. I'd also rule on motions by the defense before the commissions."
The president has determined that six detainees are eligible to be tried by military commissions, though the actual decision whether to charge someone will be made by Altenburg. Hemingway declined to estimate when trials might begin, and he described his and Altenburg's appointments as the next logical step in the military commissions process.
Altenburg said the setting for the trials will be similar to any courtroom in the United States. There will be a place for the witness to testify; an area for the commission members -- who in the civilian system would be called jurors -- including the presiding officer; a table for the accused and the defense lawyer; and one for the prosecution. A court reporter also will be present.
He said the trials would take place in a dignified setting appropriate to the process of justice.
More important to both generals, however, is the fairness of the process.
Altenburg said the trials will be conducted in much the same manner as a court- martial, which he said is very similar to any criminal case in state or federal courts.
"There will be witnesses called by the prosecutor, (who) will conduct a direct examination," he explained. "The defense counsel will then have the opportunity to cross-examine. There might be redirect or re-cross. And I would imagine that if commission members have questions that they may ask questions."
And both generals expect both prosecutors and defense attorneys to be strong advocates for their clients. Indeed, neither was surprised by the fact that five military lawyers assigned to defend the detainees are filing a friend-of- the-court brief to the U.S. Supreme Court, in which they argue that prisoners convicted by military commissions should have to the right to appeal to civilian courts.
"I can't respond to the brief because I haven't seen it," Hemingway said, "but it doesn't surprise me. We've told the public all along that military defense counsels are going to be zealous advocates for their clients. And I think this is simply a manifestation of that fact."
Hemingway said that the members of the commissions will be military officers, and that the presiding officer "will be a judge advocate who has extensive experience as a trial judge." The commissions will consist of three to seven members. Verdicts of guilty or not guilty and sentences will require a two- thirds majority, unless the case involves the death penalty, which would require a unanimous sentencing decision.
"And on top of that, we have also established a review panel," Hemingway emphasized, "and we have distinguished lawyers and jurists who have been appointed by the secretary (Secretary of Defense Donald H. Rumsfeld) to perform that function. So there are provisions for everything from pretrial activity through the final appellate process."
The review panel will hear appeals from military commission decisions. If the panel finds that a material error of law has occurred, the panel will return the case for further proceedings, which may include dismissal of charges. The panel also may make recommendations to Rumsfeld regarding disposition of cases, to including sentencing issues.
Although all review panel members will be civilians, they will be commissioned as Army major generals during their service.
Four review panel members already have been named, and Hemingway said two more may be added. He said only three members will review a particular case, and that it will be up to the review panel members to determine which three sit in on a particular case.
Hemingway pointed out that the review panel members will serve fixed, two-year terms, and said this adds to the fairness of the process.
"One of the indicators that outside commentators were looking for (concerning the panel members') independence was a fixed term that they're not beholden to any executive authority for continued tenure because of particular opinions," he said.
Hemingway pointed out that that fairness of the process also is boosted by limitations built into the review processes.
"It's important to know that the review authorities -- neither the review panel, nor the secretary nor the president -- can overturn a finding of not guilty, and they cannot increase a sentence any more than what has been adjudged by the commission," he said.
Altenburg said appointment of the review panel has helped quell some criticism of the commissions, but indicated there continue to be many perspectives.
"There are some who argue simply that there should be courts-martial, not commissions, and they'd be satisfied with courts-martial in the military system," he said. "And others insist on civilian sector jurisprudence. The fact of the matter is this is clearly within the tools of the commander in chief of the armed forces to use military commissions for violations of the law of war, when we're at war."
Although both men agreed similarities exist between the military commissions and the proceedings following World War II, they said the military commissions process is much more detailed.
"The rules of evidence are more refined -- the standard of proof beyond a reasonable doubt, no inference from remaining silent these are consistent with today's legal process," Hemingway said.
And Altenburg pointed out that the rules for the military commissions flow more from the Uniform Code of Military Justice than what occurred after World War II, and that the UCMJ often has broken new legal ground.
"It's interesting to point out that the 1950 Uniform Code of Military Justice codified the right (of an accused person) to remain silent, something that didn't become a constitutional right in this country until 1966," Altenburg said. "In many ways the uniform code, in spite of its reputation in certain circles, has foreshadowed lots of the improvements in the criminal process in the United States."
And both said they believe the military commissions process likely will be no exception to breaking new judicial ground.
"What we want to make sure we do is have fair trials that stand as a model for the international community, in terms of the implementation of the laws of war," Altenburg said, "which will affect all of our people on the battlefield."