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Release of the Military Commission Draft Crimes and Elements Instruction

Presenter: Defense Official
February 28, 2003 12:00 PM EDT

(Release of the Military Commission Draft Crimes and Elements Instruction)

Staff: Today we're going to do a background briefing on the Crimes and Elements document that could be used for our military commissions. Our two speakers on background, speaker number one and speaker number two, and I think you can tell who is whom from this, are going to talk to you today.

So with that, I'll turn it over to them.

Defense Official: Thanks, Colonel Frank.

We're from the DOD General Counsel's Office, and we have been working over the past year to lay the groundwork for military commissions. In November of 2001, the president issued a military order authorizing the use of military commissions to try non-U.S. citizens detained by DOD in the war on terrorism. Almost one year ago, in March of 2002, the secretary of Defense published Military Commission Order No. 1, which lays out procedures for military commission trials.

Today we are publishing a draft document that spells out some of the crimes that military commissions may try. I want to emphasize that this is a draft document and that it's not exhaustive; it doesn't spell out every single crime that a military commission could try. The general counsel in the Department of Defense, Mr. Jim Haynes, plans to finalize the document early in March. We are providing a fax number for the receipt of comments. We haven't established a date certain for finalizing the document, but the earlier any comments are received, the better chance there is that we will be able to consider them.

I also want to emphasize that this is not a formal public notice and comment process. Those procedures don't apply to military commissions. We felt, though, that publishing the document in draft form would, however, provide a useful opportunity for interested organizations and individuals to provide input. My has done significant work on the draft Crimes and Elements document, and he's going to describe the document in more detail.

Defense Official: Thanks.

The document we're talking about that you should have in front of you is produced by the Office of the General Counsel of the Department of Defense. And while not exhaustive, it does list and define violations of the law of war and other offensives, triable by military commission. What it does is it reflects principles of law that are derived from numerous international treaties, domestic and international statutes, and judicial precedents, as well as the writings of international legal scholars and accepted customs and norms of international practice -- into one document.

Now, I'll give you a little background on how this document was produced, to make sure it was as accurate as possible, we started with a working group from all the services -- of lawyers from each of the armed services -- and worked from those documents I just listed to produce a draft. We then circulated that draft to other U.S. government agencies and consulted with congressional committee staffs. Additionally, we sought to benefit from the opinions and legal -- and advice of experts in a variety of disciplines outside U.S. government. In facilitating the benefit of those opinions, that's what is the purpose of the posting that we have today.

Now, in drafting the document, some of the guidelines that the group was working from were to choose offenses and definitions -- crimes and definitions -- that were both internationally and domestically recognized, substantively and internationally and domestically recognized as appropriately within the jurisdiction of military commissions. We also looked at familiarity with military practitioners who would be involved in military commissions and we looked at relevance to some of the conduct we expected might be subject to military commissions.

I'd like to just, before taking any questions, walk you through the document that you have in front of you. I think the first three paragraphs are self-explanatory, general paragraphs. Paragraphs 4 and 5, applicable principles -- or maybe Sections 4 and 5 -- applicable principles of law and the definitional section in number 5, these are principles that allow other portions of the document to be addressed more efficiently. Definitions are definitions that might be common to several of the crimes -- principles of law that might be applicable to the way several of the crimes would be viewed and address some of the questions that might arise in a particular case, in a way that's useful to a number of different crimes.

Then we move into Section 6, which is the crimes and elements itself.

Q: What -- did that mention affected persons? I don't see that in the definitions list. I see protected properties, but not -- (off mike).

Defense Official: Well, the phrase used in the element is actually "protected under the law of war," and that is the defined in the definitions section. The definitions section refers to specific verbiage that are actually in the elements, which are the legally operative words that the appropriate parties would be using any commission.

Looking at the list of crimes and elements itself, you find first a listing of the elements that would have to be proved before a commission was able to assess guilt in any case. And then you've got sometimes a small commentary section, which are comments that might be helpful in interpreting some of the elements. Usually those are specific to that crime. If it's a comment that would apply across the board for several crimes, you'll find that -- one of the earlier sections that I mention, 4 or 5.

We have Part A, which is substantive offenses, which, again, is fairly self-explanatory. We have, you know, offenses like attacking civilians, taking hostages, using treachery or perfidy, terrorism.

And then we have Part B, which is other forms of liability, sometimes referred to as inchoate offenses or -- things like aiding and abetting, conspiracy, ways of assessing liability that are usually associated with one of the substantive offenses.

That pretty much takes you through the document in front of you. I wish you'd had it a little bit more in advance -- I apologize for it -- to give you some chance to be able to come up with maybe some specific questions. We're happy to address any questions you might have.

Yes?

Q: What are some of the things that aren't in here that perhaps had been originally considered? I notice that, for example, genocide is not in here, and there's some other crimes against humanity that have been previously defined that aren't part of this. What are some of those, and what's the rationale behind that?

Defense Official: Well, you've already identified two big categories. Genocide and crimes against humanity are not in this -- the current draft of this document. I'm trying to think. Another crime that I've at least seen in the press written about are membership offenses, which were used in some of the commissions in the post-World War II in Nuremberg. We have not included membership offenses.

Q: Meaning that if you're a member of a group that has been determined to be a terrorism -- terrorist group, you wouldn't -- that's not necessarily a crime under this document?

Defense Official: More or less. I don't know that -- in previous articulations, it hasn't involved a terrorist group. In World War II it didn't --

Q: Whatever. But in that case, it was Nazis.

Defense Official: If there were to be a membership offense, presumably it would involve some sort of definition like that; that is not in this document.

The reasons -- it's tough to really identify, I can't really identify specific reasons for why any particular crime is in or out. As you can imagine, with all the vetting that I described that took place with this document, there were all kinds of concerns brought to the table. But basically, the criteria that I laid out for you of international and domestic acceptability, both in substance and in commission jurisdiction, were the driving factors that -- in the balance that played out -- put one crime in or one crime out.

And remember, this is not an exhaustive list. It could be supplemented or amended at any time. It's an illustrative list of what can be tried by military commission, in a way that is designed to practically help those who would be involved in the military commission process.

Sir?

Q: What process are you going to go through from this draft forward to come up with the final list, so to speak?

Defense Official: I'll address that. Essentially, we're putting it out for public comment now, and in a very short period of time, sometime in March, we will go final with a document after receiving -- or reviewing whatever comments we receive by that time.

Q: Who does this list apply to? Is it only combatants -- (off mike) -- people who are arrested on the battlefield or captured on the battlefield? To detainees? Could it apply to U.S. citizens? Who does it apply to?

Defense Official: This document is subordinate to the Military Commission Order No. 1 that was released by the secretary of Defense in March of last year, which is, in turn, subordinate to the president's military order of November 13th, 2001. Those -- so, going back to the jurisdiction granted by the president's military order, trials could only take place with respect to people that the president has specifically designated as being subject to his military order. That, according to the president's order, could not include United States citizens. But at this point in time, no one has been designated by the president, so it would be impossible to identify exactly who it might be applicable to.

Q: Okay, for instance, the detainees who are now being held in Guantanamo; in theory, could some of them -- if it's determined that they violated some of these crimes or offenses, could they be potential people that would be up for military commissions?

Defense Official: I would always hesitate to answer a hypothetical, as a lawyer, I think that would be a fair assessment of someone who might be -- might fall under the president's military order. If you look at Section 2 of that order, it lists a definition for individuals subject to the order and describes the president's finding that there's a reason to believe that there are a number of criteria that might fit enemy combatants who were captured in the war against terrorism.

Q: Once the document is finalized, and it goes out, as you said, to sort of help people determine -- who would actually be using this? Who would be reviewing cases and comparing it to the document to see if something applies?

Defense Official: I think it would be used in the same way crimes and elements are used in most jurisdictions in the United States. A prosecutor's office would use -- investigators would, first of all, use the crimes and elements to try to identify where, in fact, criminal activity may have occurred. Prosecutors would use them to determine what kind of case there was, what should be charged, what shouldn't be charged. Defense counsel would use them to determine what the weaknesses of our case are; where, in fact, the government's proof would fail. The commission might use the Elements to determine whether or not the facts presented by both parties measure up beyond a reasonable doubt to each of the elements.

Q: Who are those prosecutors? Because in the civilian system, we know who the prosecutors are; from the local level all the way up to the federal, we can identify them. But I'm having a hard time -- are these military prosecutors? Who -- where are these people? Who are they?

Defense Official: That question is answered in the -- in Military Commission Order No. 1; it was released by the secretary in March. And it describes -- I have it here in front of me -- "judge advocate of any United States armed force" -- let's see -- "or special trial counsel of the Department of Justice who may be made available by the attorney general." That's the description for the prosecutors. And commission panel members similarly are listed in that document.

Q: Could you help me understand? I'm no legal expert here. Say five, 10 years ago, for example, Saddam Hussein used a human shield. The U.S. wanted him prosecuted for a war crime. What would have happened? What sort of process would you have gone through? Would you have had at that point set something like this up, or is there somewhere else you could have gone with it?

Defense Official: It's a difficult question and there's a lot of steps involved in setting up the process. Someone could be tried in any number of jurisdictions, depending on the offense and what the jurisdiction would be.

With respect to a trial by military commission, had there been one some years ago, at some point in time they would have had to determine what charges to bring; a defense counsel would have had to determine how to defend against it; and the judicial authority, whoever it was, would have to determine how the facts measured up to those elements.

Whether or not it would be articulated in a document like this such that it could be more practically used by practitioners, it depends. They could have simply referred to the customary international law of armed conflict. That would have made for a much lengthier proceeding. Or they could have articulated the elements in advance. And certainly it's ripe for whatever legal discussions that would take place in litigating that issue.

Q: So this is designed to be sort of a living document, a new legal code, essentially, that will be with us ad infinitum now. You'll just keep adding to it. This is a new, almost a separate legal system.

Defense Official: I wouldn't refer to it as a new legal code, in that it's certainly not intended to be exhaustive in any way codifying what's a fairly broad body of law, the law of armed conflict. It's select pieces of it that are likely to be applicable and relevant in the commission trials that may take place. It probably would be pushing it a bit too far to call it a code at this point in time.

Sir?

Q: Forgive me if I missed it, but in the drafting process up to now, has there been -- is this an entirely U.S. operation up to now? Has there been any input from coalition partners or international bodies? And now you're publishing the draft, do you expect there's going to be input, comment from outside?

Defense Official: Yes and yes. We have had input, when I mentioned earlier that we've gone outside the government for some input and in fact have done that in a few specific cases.

Q: Could you elaborate a bit on that?

Defense Official: I hesitate to describe who exactly has provided the input because we certainly never -- in soliciting input, never told them that we were in fact going to publicize any particular role. We were looking for expert advice. Also, with respect to later -- post-today, I suppose -- I would expect that -- just like we have received input, both solicited and unsolicited, from international sources, I would expect we might continue to receive input from those sources.

Sir?

Q: Just getting back to Jamie's question here for a little bit, I'm still a little confused, too. So a prosecutor or that special guy from the Justice Department decides, "Hey, there's something chargeable here." Can they charge them, or who makes that decision? Is the president the one who makes that decision to actually charge and put this person in front of a military tribunal -- commission?

Defense Official: For the commission to have -- it's -- "prosecutor" is the right term. That special judicial person you mentioned is just one possible prosecutor.

The president first would have to make the person subject to his military order. That gives DOD jurisdiction, if you will, over that person. The president's order says, "Once so designated, if tried" -- the person wouldn't necessarily have to be tried at all; they might not even have an alleged crime -- but if tried, they would be tried by military commission.

Then Military Commission Order Number 1 directs that the appointing authority would refer charges -- would appoint a commission and refer those charges to be tried by military commission. So it wouldn't just be up to a prosecutor to draft the charges and start a trial. An appointing authority would have to refer those trials (sic).

And anticipating your next question, the appointing authority right now is the secretary of Defense. But his order does allow that another appointing authority be -- that that authority be delegated to someone who might do it in a more regularized basis.

Q: Do all of these -- as I'm reading it, it seems that all of the tests on each one of the things has to be met, except where it says -- (inaudible). But like I'm looking at terrorism. So one, two, three, four and five all have to be met to equal terrorism, with the "one or" being in the number two?

Defense Official: Yes. I think, other than the fact that I wasn't looking at one, two, three or five when you said that --

Q: So pretty much all of these are like it has to meet these five tests, and then we can charge them with terrorism?

Defense Official: Right. All of --

Q: Or with anything?

Defense Official: Or you have to prove each of those elements beyond a reasonable doubt, in order for someone to be convicted of that offense.

Q: There's something in that that I think is interesting, where it seems -- the general feeling seems to be that, you know, military targets are legitimate attacks, but then in the comments section, it says military objectives are not legitimate attacks if the person isn't the sort of standard combatant working for the opposing government. So that says that -- am I reading that correctly? It would be like you can't attack a military target if you're not -- and expect not to be charged with terrorism if you're not a -- this is a stupid question. (Laughs.)

Defense Official: I'm not sure if I understand --

Q: I'm just -- I guess I'm just trying to say -- it's interesting -- it's interesting to me that a military objective is not a legal target for everyone -- or anyone.

Defense Official: In some cases we use -- there's terminology used in the law of war that I have to say is not always used with the precision that criminal lawyers use when they are adjudicating guilt in a way -- when you can take away someone's liberty and put them in jail, we tend to use words more precisely. So you get some of these terms in the law of war that can be used -- definitions that can adjust slightly, and it's very important exactly what you meant. This perhaps could be one of those cases.

If there is no armed conflict going on -- if you're in an armed -- let me back up. If you're in an armed conflict, there are certain things that we could all recognize as a military objective. A tank is a military objective. A milk truck might not be. It would be a crime, in some circumstances, to attack the milk truck where it wouldn't be to attack the tank. That doesn't mean you can always, at any time, go attack any tank anywhere in the world. The crime might also be based on your lack -- you, the accused, lack of status as a lawful belligerent or a lawful combatant.

Q: For instance, you would not be able to attack a tank when it's sitting on a base? I mean, what --

Defense Official: Remember the attack, for instance, on Khobar Towers in Saudi Arabia. I don't think there's anyone who -- well, I shouldn't say there's not anyone. But there aren't -- well, I don't think that was a lawful attack on a military objective.

Q: Or, say, the attack on the Pentagon on 9/11.

Defense Official: Or the attack on the Pentagon on 9/11.

Q: Or the USS Cole.

Defense Official: The USS Cole. Thank you. All good examples of what might be called a military objective in certain circumstances, but would not always be a military objective.

Q: Just a couple of points of clarification. Is this document the entirety of this? I mean, this is not a summary of -- there's bigger, more explanation of each of these points somewhere else? This is the whole thing?

Defense Official: Well, the bigger explanation somewhere else would be -- you'd find them in the antecedent treaties, judicial opinions from international courts and other courts that have tried things by military commission, tried law of war violations. Some of them, for instance, you'll find Title IX addresses a couple of the offenses listed in there. And international practice; it's been customarily agreed to by nations.

Q: And you had to draw this up because there was no single -- essentially criminal code for military commissions? You needed to draw this up to clarify what was subject to --

Defense Official: There's no -- there's no single comprehensive document that addresses all the crimes and elements for violation of the laws of war. If you look at the -- I described the president's order that, among other things, tells the secretary of Defense to establish rules of procedure. The secretary of Defense established those rules in Military Commission Order No. 1. In that order, he authorizes the general counsel to issue supplementary instructions that will facilitate trial by military commission. Based on, as you've described accurately in many ways, the nature of this document, obviously this is something that would facilitate full and fair trials by military commission.

Q: Why did you not put in genocide and crimes against humanity?

Defense Official: Again, it's difficult to --

Q: Is that covered somewhere else, or something?

Defense Official: Well, it's necessarily true that it would be prevented from being tried here. There was -- there's give and take on all sides on all kinds of questions like that, as to whether we should or should not include it. It doesn't mean that it's not triable simply because it's not in here. But looking at all those factors, you know, what is appropriately within the jurisdiction of a military commission, what is substantively the definitions that are acceptable internationally and domestically, and what is familiar to military practitioners, and what is relevant to the alleged offenses that took place -- all of those -- or have taken place or might take place -- all of those things were factored together in choosing which crimes and elements to put in here. Because it's not a comprehensive document, it was understood that things would be left out that might be triable.

Defense Official: And it could be that we would receive comments during this comment period that would cause us to add or subtract crimes from the document before we finalize it.

Q: Are there things in here that you anticipate are going to be controversial to human rights advocates or civil libertarians? Are there things they're going to focus on right away and say wait a minute -- are you anticipating a sort of lightning rod in here, or do you think it's fairly innocuous?

Defense Official: I think we'll find out, perhaps. That's one of the benefits of publishing it on the Web.

Q: Can I ask you --

Defense Official: It shouldn't be very controversial, though in some ways things have been articulated in this document in a way that make them cognizable with respect to terrorism. So not always would you see language that duplicates language of 150 years ago, when the norms that, you know, formed the core of these offenses were first articulated.

Realize, too, when law of war treaties were articulated -- some 50, some over a hundred years ago -- for some of these offenses, they were articulated with language that applied to states, not to individuals and the criminal culpability that would attach to individuals. It's been a development since then -- Nuremberg, the International Criminal Tribunal for the Former Yugoslavia, and other events -- that have brought some of those norms into today, where they can be articulated with respect to individual criminal culpability.

Q: Could you speak to the issue that we've been sort of grappling with during this week, of whether or not people who volunteer to be human shields, as there are some in Iraq -- are they -- do they give up their protected status and become enemy combatants with that volunteering? And how does it apply in this situation, when you're looking at, you know, potential for someone using human shields that are volunteers?

Defense Official: That's a little bit out of the scope of what we have been working on, so --

Q: Right. (Off mike) -- ask the General Counsel's Office, and here you are!

Defense Official: Well, I think it's safe to say that as the human shield -- I'm trying to quickly find it in this document -- using protected persons as shields -- it's the --

Q: Do they give up their status as protected persons?

Defense Official: It doesn't address that issue.

Q: (Off mike.)

Defense Official: They certainly put themselves at risk.

Q: Mm-hmm, but can you guys address that issue for us rather --

Defense Official: You're asking whether they can be prosecuted or --

Q: No, I'm asking whether people who volunteer to be human shields give up their protected status as civilians. Do they become enemy combatants?

(Cross talk.)

Defense Official: Yeah, there's other folks in General Counsel's Office that have been looking at that issue, so I don't think we should really get into that.

Q: (Off mike.) Okay. Thank you.

Defense Official: It's -- well, it's -- I mean, just to briefly address it, it's generally no. But this document doesn't -- this document talks about criminal culpability, not necessarily what -- you know, what status someone might get or not get. It doesn't create a crime of making oneself a human shield. And the crime with respect to losing or not having belligerent privilege, which you'll find a couple of in here, involves a murder or destruction of property. So they would have to have some sort of an intent to cause that damage or harm or killing before they would be culpable.

Q: But the person who orders the use of a human shield would be culpable under this definition here.

Defense Official: I would think so.

Q: Another question. I don't see any kind of statute of limitations or any treatment of when the offense was committed to fall under this list. In other words, if for our hypothetical we capture Saddam Hussein sometime in the next couple of months, could he be put in front of a military commission for acts that he committed, say, during the 1991 Gulf War?

Defense Official: Remember the key is going to be the jurisdiction over the individual based on the president's military order. And that's based on their membership in al Qaeda or the fact that they've engaged in, aided or abetted or conspired to commit some act of international terrorism or acts that aided and abetted or in preparation thereof or harboring of those things. So that would be the first jurisdictional trigger. As a technical matter, I suppose, once that jurisdictional trigger had been met and the president had designated that person, then they could be tried for any violations of the law of war or other offenses triable by military commission.

Q: Forgive me, I came in late, but the context of this is that it was drawn up in the context of the al Qaeda attacks, not a war with Iraq. Isn't there an existing body of law under which people would be tried under -- in what would be a more conventional war between the United States and Iraq?

Defense Official: My answer to the last question was really a technical one I am a lawyer.

Q: Okay.

Defense Official: I tend to give those kinds of answers. Whether or not the president would make them subject to his military order really goes to your point. I wouldn't say there's a different -- also, again, being technical, I wouldn't say there's necessarily a different body of law. This is the international law of armed conflict.

Q: You're applying it to the terrorism attacks.

Defense Official: Right.

Q: But you're clearly thinking about Iraq when you were drawing this. I mean, there's a whole page in there about human shields. I mean, al Qaeda didn't have anything to do with human shields. I don't recall human shields on September 11th. I mean, clearly you were thinking about -- you were thinking ahead to what might happen as -- the whole Iraq conflict -- (inaudible) -- to fall under Operation Enduring Freedom, the global war on terrorism. You were thinking about Iraq and other potential aspects of the war on terrorism, not just 9/11.

Defense Official: Well, that's what a lawyer would call a leading question that -- (laughter). I don't know if I'm quite as clear about what we were thinking about at that time.

And, sir, I know you've had your time up for a while.

Q: Thank you. Realizing that the first step for someone becoming subject to a trial by one of this military commissions is the president designating that person as somebody who -- and then you go and see whether you have a case, and so on. What is the mechanism for that to happen? Do you have anything to do with that or is that a completely different thing? In other words, the mechanism for that name to come up to the president, and the president says yes, this person.

Defense Official: Well, the -- you know, the way it would happen would be that one of the president's advisers, perhaps the secretary of Defense, would make a recommendation to the president with respect to a particular person, and provide facts to the president that would support a designation under the November 13th, 2001 military order.

Q: A couple of other questions. Does the presidential order and the subsequent secretary of Defense's order, does that -- at the end of his administration, does that go to his successor and successive presidents and secretaries of Defense until somebody decides no, that they don't like that, this is no longer operative?

Defense Official: That's correct. It's similar to an executive order. It continues on until it's changed.

Q: Till somebody says no. Okay.

And third -- and this might have been in Military Commission Order No. 1 -- it probably was. But is there a provision for outside observers of these proceedings?

Defense Official: You're right, it is in Military Commission Order No. 1. I don't have the exact language at the tip of my tongue. But it's something to the effect that the commissions will be as open as practical.

Q: What does that mean?

Defense Official: Well, meaning certainly we would -- we want as many observers as have interest in the commissions to be able to see as much of it as possible.

Q: Does that Military Commission Order No. 1 -- I'm sorry, I just left my copy at home. (Laughter.) Does it also outline the things like the burden of proof, access to attorneys, the rights of -- you know, does it lay all that -- is that all spelled out, if I go find it?

Defense Official: All of those things are spelled out back at your house. (Laughter.) Yes, access to attorneys, proof beyond a reasonable doubt, those kinds of issues are laid out. What it doesn't lay out quite as clearly is the subject matter jurisdiction, which it describes as -- and I have it here somewhere -- "commissions established hereunder shall have jurisdiction over violations of the laws of war and all other offenses triable by military commission."

Q: And that's what this answers?

Defense Official: This assists. And, I mean, you can imagine, if you were trying a case using this order, that's one of those questions you'd like to answer with a little bit more clarity, and that's what this instruction does.

Q: I'd like to go back to the issue of applicability and what people were thinking about. Originally when this came up -- I mean, one would think that this was designed for people like the detainees in Guantanamo, if so chosen by the president. But there is this question now: Was it written with a view also to possible prosecutions of people who might be detained in the wake of a war with Iraq? And if that's, you know -- I mean, for example, then, why specifically was the notion of human shields used in this as a law?

Defense Official: You know, again -- and I feel like I'm begging the questions, because it's very difficult to answer specifics as to each judgment call that was made in this document, other than to reflect back on the general principles we were trying to apply in choosing offenses. The -- whether or not a human shield would or would not be used -- remember, there's an ongoing armed conflict. We don't know everything that's going to take place in that armed conflict that's happening right now. An assessment of relevance, likely relevance, had to be made sometimes without full knowledge, because that's, in fact, what courts are for; to really find out what the facts were in a specific case. And until you've got a judicial determination, you don't always know exactly everything that happened.

All of that said, it was made to implement the president's military order; it was not made with a view toward implementing some potential future --

(Cross talk.)

Q: (Inaudible) -- documents together mean that these will only be used in the pursuit of justice against folks that were involved in September 11th, or the Afghan war or global war on terrorism, which remains sort of undefined what the battlefields are and may or may not include Iraq?

Defense Official: Those first three paragraphs that I said were general and relatively self-explanatory; I think those addressed that and clearly make -- they make clear that the document is applicable to the president's military order with its jurisdiction.

Q: Can you remind us what that jurisdiction was?

Defense Official: A person that the president declares is subject to his military order, who meets the criteria as they're found in Section 2 of that order; that being that there is -- he finds there is reason to believe the individual was a member of the organization known as al Qaeda or has engaged in, aided or abetted or conspired to commit acts of international terrorism or action, preparation thereof that have caused or threatened to cause injury or adverse effects to the United States -- and I'm summarizing there -- or basically, persons who have harbored those kind of people.

Q: Aha.

Defense Official: That's where the jurisdiction --

Q: Gotcha. (Laughter.) Okay.

Staff: We have time for about one more.

Defense Official: That's where the jurisdiction of this ends.

Staff: We're going to have to clear the room for a SECDEF press briefing, so one more, then we'll take your questions afterwards if you still have them. (Off mike.)

Q: So I'm clear, if general counsel next couple weeks wraps this thing up, decides to put his name on it, put it out, is that it, it's now law? Or does the president, the Congress, the secretary of Defense -- who has to sign off on this?

Defense Official: This would be a supplemental instruction issued by the general counsel of the Department of Defense in accordance with Military Commission Order No. 1, which give him authority to issue such instructions. But remember, it can be amended or supplemented at an any time.

Q: So as soon as the general counsel puts it out, that's it. We know that the minute we receive the final draft from the general counsel, it's now the law.

Defense Official: It's effective that date that it's signed.

Q: But it could be updated and things happen to it in the future.

Defense Official: That's correct.

Q: Thank you.

Defense Official: Thank you all.

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