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Special Defense Department Briefing on Military Commissions

Presenter: Legal Advisor to the Appointing Authority for Military Commissions Brig. Gen. Thomas L. Hemingway
August 31, 2005 1:00 PM EDT
Special Defense Department Briefing on Military Commissions

            MODERATOR:  Ladies and gentlemen, thank you for joining us today for this update on military commissions.  We have with us today, Brigadier General Tom Hemingway who serves as the legal advisor to the appointing authority for the Office of Military Commissions.  Part of our commitment to ensure the transparency of this process includes having you updated from here in the Pentagon with senior Defense officials, and with that in mind, General Hemingway has agreed to answer your questions about recently approved changes to the ongoing commissions' process. 

 

            With that, I'll turn it over to General Hemingway. 

 

            GEN. HEMINGWAY:  Thanks, Michael.  And thank you for being here this afternoon. 

 

            The changes which have been approved by the secretary to Military Commission Order Number One can be viewed best, I think, in a comparative fashion.  Under the old order, an accused had no more than seven members on a commission, including the presiding officer.  Under the new military commission order, on a non-capital case there will be a presiding officer and at least three members; on a capital case there will be a presiding officer and at least seven other members. The notable difference here is there's no cap.  As you can see the appointing authority has discretion to appoint a greater number than under the original order.  Additionally, as far as alternate members are concerned, the original order provided for one or two alternates, and the new order provides that there will be at least one or more giving the appointing authority the discretion to appoint a greater number if he deems it advisable given the number of people on the commission. 

 

            Now, probably the most significant change that we've made in the new Military Commission Order is the presiding officer will rule on all questions of law, challenges and interlocutory questions. As you know, in the original order all members, including the presiding officer, decided all questions of law and fact.  As far as evidence is concerned, the commission members remain authorized to take exception to rulings of the presiding officer on admission of evidence.  But as far as questions of law and interlocutory questions, challenges in particular, those will be rulings for the presiding officer. 

 

            I think based on our experience last August, this will make for a more orderly process.  As you know, when we initially started with these proceedings, challenges for cause had to come up here for resolution by the appointing authority.  And aligning this more in tune with a judge/jury model I think will make for a more efficient and orderly process. 

 

            Under the original order, the presiding officer and all members voted on findings and sentence.  Under this order, the presiding officer will not vote on findings and sentence; he will instruct, but will not participate in the closed deliberations of the commission. 

 

            We've also made a modification from the original order as far as the accused's presence.  Originally the Military Commission Order provided that the accused "may be present" unless it was inconsistent with national security.  The emphasis is now that the accused "shall be present" to the extent consistent with national security, and if he's denied access, the presiding officer must exclude the evidence unless its admission would -- if the admission would deny the accused a full and fair trial.  And quoting from the new order: "Notwithstanding any determination of probative value under" -- a prior section -- "the presiding officer shall not admit the protected information as evidence if the admission of such evidence would result in the denial of a full and fair trial." 

 

            Additionally, we have changed the period of time that the review panel has to issue its decision.  Originally the order said that the panel had 30 days to review a case, which was a significant challenge. We have changed that.  It now says that the review panel has 75 days after the receipt of the record of trial to review the case. As you know, under the instruction -- I mean the military commission order, the record comes to the appointing authority for an administrative review and then is transmitted to the review panel. The 75 days does not begin until after that administrative review has taken place and the transcript is actually in the hands of the review panel. 

 

            There is one other change that we've made that I haven't included on the slides, and that has to do with the alternate defense counsel. As you know, the accused has the opportunity to make a request for a specific named detailed counsel.  Under the original order, if that request was granted, the originally detailed counsel was excused, and if the accused wanted him retained, that decision was left to the appointing authority.  That's been changed now, and that decision will be made by the chief defense counsel, not the appointing authority. 

 

            With that, I'm open to any questions that you may have.  Yes? 

 

            Q     General, this looks like to some degree a fundamental restructuring of the commission.  Do you view this as an admission that the commission's system as initially set up by the Pentagon was flawed, as some critics had said all along? 

 

            GEN. HEMINGWAY:  I don't consider it an admission that the system was flawed.  I've maintained consistently that we would try to make those improvements that were necessary to the process as we moved along.  We learned lessons when we started these, and these changes are a result of the lessons learned.  I in particular thought that we were spending more time addressing the challenges issue up here that could have been resolved during the trial, as they are in most judicial proceedings. 

 

            Q     Just a little follow-up.  Are you going to start -- the trials that have already begun, are you going to start over with those?  Are those going to proceed? 

 

            GEN. HEMINGWAY:  Well, the conduct of the proceedings will be under this military commission order.  What changes, if any, the appointing authority is going to make as far as the commission members, I don't know. 

 

            Q     But that -- 

 

            GEN. HEMINGWAY:  That's not been -- I haven't discussed that with Mr. Altenburg. 

 

            Q     The trials that have begun are not going to begin again from scratch. 

 

            GEN. HEMINGWAY:  Well, it depends on what you mean by "scratch." If the appointing authority appoints additional members, as in at least one of the cases counsel have asked for, then you would have additional voir dire examinations.  If you consider that to be beginning from scratch, to that extent, there would be a beginning. But we're not going back, new charges, and starting all over again, which is what I would think would be a complete new beginning. 

 

            Q     When will you resume or begin, however you want to -- 

 

            GEN. HEMINGWAY:  That's the $64,000 question.  As I've said before, as soon as we feel that we have clearance from the courts, we'll be in hearings 35 to 45 days subsequent to that.   

 

            Q     What kind of clearance do you need from the courts? 

 

            GEN. HEMINGWAY:  Well, in several of the cases, we're under a restraining order.  In the Hamdan case, the Circuit Court of Appeals hasn't issued their mandate yet.  So we can't move out on that.  And as you know, that case -- he has filed for a writ of certiorari with the Supreme Court and at the same time asked the circuit court to stay the issuance of the mandate, pending a decision of the Supreme Court. It's my understanding the first conference of the Supreme Court is late in September, which means we won't know what their decision is on that particular case until October.   

 

            On the Hicks case, Judge Kollar-Kotelly, I believe, still has motions under consideration.  We don't know if she's going to take argument on those.  I know the briefs have been filed.  But -- so we await that. 

 

            And I can't tell you today what the appointing authority's plans are with either the al-Bahlul or al Qosi cases.   

 

            Q     And additional people being charged -- is that imminent? 

 

            GEN. HEMINGWAY:  I don't want to use the term "imminent."  We have additional charges under consideration at this time. 

 

            Q     So you have had for some time, some weeks, right?   

 

            GEN. HEMINGWAY:  They've been in my office for about a week and a half, I believe.   

 

            Yes, sir? 

 

            Q     General, if I may try to squeeze you from the other side, in the first question -- forgive me -- as to which -- the predicate was that these were major changes. I was going to ask you if you could react to the notion that these are just tinkering.  There have been a lot of critics, as you know, from the ABA to others, and their criticisms range from admission of evidence, probative value, not going outside the civilian system, addressing whether the information was obtained through coercion or worse.  These seem not to be addressed.  So how would you respond to, I'm afraid, what is the opposite of what you were pressed first, not that it's -- (word inaudible) -- but it's really trivial? 

 

            GEN. HEMINGWAY:  Well, I will leave it to members of the media to characterize this as a major change or a minor tinkering.  I think it's an improvement to the process, and that's how I would characterize it, and it was made for that purpose, to improve the process.   

 

            Q     Two quick ones.  Am I correct the three -- ones I outlined: probative value, whether something was obtained through coercion, no appeal outside this insulated -- (inaudible) -- all those things still exist, those things that were the objects of criticism? 

 

            GEN. HEMINGWAY:  Well, as far as probative value, I've discussed that in the media many times.  We have not changed that.  And quite frankly, I don't see any reason to do so. 

 

            As far as the appeal process is concerned, we haven't made any changes to the review panel other than providing them with additional time.  

 

            And I've addressed the issue of, you know, coercion before.  I talked about it before the Senate.  I haven't seen any case involving evidence that was based on that kind of evidence.  Now, is this probably going to be litigated at the commission?  I suspect so.  But I haven't seen a case that would generate my concern in that regard. 

 

            Q     Just then on the first part, you're not eager to say whether it's trivial or major, I can understand.  But what it is, particularly the distinctions between the presiding officer, the changes to his duty and his relationship to the other members, could you say on its own how that improved the process, why is that an improvement? 

 

            GEN. HEMINGWAY:  Well, you know, it's interesting that you should be asking that question because one of the issues that was frequently raised by members of the media is why do you have them all voting together on everything when it doesn't follow the judge/jury model? Now we have a system that is more aligned with a judge/jury model, and it's my view that that makes it a smoother and more efficient process to have a presiding officer making those rulings. And I've been asked before today and I think it bears repeating here that presiding officers are judge advocates, and when we have solicited nominations from the services, we have asked for presiding officers who have experience as trial judges. 

 

            Q     General, I was hoping you could elaborate some on the change to the rule on the admission of classified evidence.  I'm afraid I just don't have a clear picture of how that applies when you're actually in a trial. 

 

            GEN. HEMINGWAY:  Well, without a specific instance, you know, I don't want to engage in hypotheticals, but we did not have before a rule that provided for the exclusion of protected information if ultimately it would result in a denial of a full and fair trial.  And now we have made a complete and clear statement on that basis. 

 

            Q     But are there still instances where classified information could be admitted without the defendant being present? 

 

            GEN. HEMINGWAY:  Well, certainly if it wouldn't result, in the view of the presiding officer, in the denial of a full and fair trial, or if there's classified information to be considered that is not evidence, I could envision the closure of the proceeding.  We've already faced that in the initial proceedings when there was a closure during voir dire examination. 

 

            Q     And in those cases the defendant's attorneys would still be present? 

 

            GEN. HEMINGWAY:  The detailed defense counsel cannot be excluded from those sessions. 

 

            Q     When did you first consider to make these changes to the process? 

 

            GEN. HEMINGWAY:  Oh, a number of months ago.  All of these changes have gone through the interagency process.  We've worked with the Department of Justice, the Department of State, the National Security Council.  And as you know from being in this town, coordination and collaborative work like that takes some time.  And it did in this case until we were satisfied we had the best product. 

 

            Yes? 

 

            Q     Sir, forgive me, but how many commission members do we have right now?  We have three, including -- 

 

            GEN. HEMINGWAY:  On several of the cases -- right.  Right, three. 

 

            Q     Three.  So we need one more on those cases. 

 

            GEN. HEMINGWAY:  That would be correct. 

 

            Q     So that means, does it not, that we have to start over? 

 

            GEN. HEMINGWAY:  Well, as I responded to my first question, we have additional steps that need to be conducted.  Whether or not that is a "start over" is your characterization, not mine.  You know, we didn't get very far initially before we had to put these proceedings in abeyance, so although there might be additional steps, I don't consider them to be big hurdles. 

 

            Q     For example, in the Hicks case and in Hamdan, we were well into the motions process. 

 

            GEN. HEMINGWAY:  Sure. 

 

            Q     So this fourth person is going to have to get up to speed. 

 

            GEN. HEMINGWAY:  Well, remember that on a lot of those motions now, the presiding officer will be ruling. You know, if there had been any taking of evidence, then the additional member, of course, would be required to read the authenticated record of trial to get up to speed, but that hasn't been the case. We've never reached the point where we were introducing evidence. 

 

            Q     So we could get started pretty quickly then, you think, once we get through these hurdles of importance? 

 

            GEN. HEMINGWAY:  I think so.  Correct. 

 

            Sir. 

 

            Q     The press release that we were given before the briefing began said that some of the changes stem from suggestions from outside organizations on possible improvements. 

 

            GEN. HEMINGWAY:  Well -- 

 

            Q     Specifically, which outside organizations and what suggestions did they make? 

 

            GEN. HEMINGWAY:  Well, I didn't have any personal contact with the suggestions.  I will tell you that the change that we made concerning classified evidence and -- did come as a result of our discussions with people in the State Department. 

 

            Q     Is that the outside organization you're talking about, the State Department? 

 

            GEN. HEMINGWAY:  No.  I don't -- I can't speak for who they may have consulted or whether or not they made that suggestion on their own. 

 

            Q     So you're not able to say -- 

 

            GEN. HEMINGWAY:  I -- 

 

            Q     -- (off mike) -- in the press release which outside organizations? 

 

            GEN. HEMINGWAY:  Right -- I can't specify who they talked to. But I -- 

 

            Q     Do you know that they talked to outside organizations? 

 

            GEN. HEMINGWAY:  I'm fairly confident that they have talked to representatives and outside organizations.  That's correct.  Now -- 

 

            Q     Non-governmental organizations? 

 

            GEN. HEMINGWAY:  I don't know if they talked to non-governmental organizations.  Now, I get a regular flow of correspondence from non- governmental organizations unsolicited with a variety of suggestions. 

 

            Q     Did any of those suggestions convince you to make these changes? 

 

            GEN. HEMINGWAY:  You know, we've been working on these for a long time, and if these changes satisfy those people who had suggestions, who had complaints, then I'm really satisfied with it.  But we made this -- these changes and have been working on it for some time to try to produce a better and more efficient system. And I wasn't personally motivated, and I don't know of anybody else in the building who was personally motivated solely in response to those criticisms.  But, you know, we get mail all the time.  You can't ignore it. 

 

            Q     Could I just briefly return to the issue I raised at the beginning about whether this is an admission of the previous process was flawed.  Last year the Pentagon assured the world that the system developed would result in full and fair trials.  You've now changed that system.  Can you comment on that?  And are you still promising full and fair trials? 

 

            GEN. HEMINGWAY:  I am.  And I did before.  It's just that I think that this system is a smoother and a more efficient system for delivering the final end product -- a full and fair trial. 

 

            Q     Is it fairer than it was before? 

 

            GEN. HEMINGWAY:  I think ultimately it might be, in the eyes of some people.  I was -- as I told you before, I was satisfied with the system before, but that doesn't mean that I don't want to make it better if it can be made better, and I think this makes it better. 

 

            Sir? 

 

            Q     General, I'm a bit -- still hazy on the -- what you referred to as the new rule, first time allowing for the exclusion of protected information if it would result -- you know, if having it -- 

 

            GEN. HEMINGWAY:  Right. 

 

            Q     -- on a full and fair trial.  What I'm hazy about is there are provisions now, are there not, that such information can be included if it's disclosed to defense counsel who have security clearance?  It would not -- it would be part of the proceeding if it could be disclosed to defense counsel, not to the defendant, who of course has no security clearance.  What then, is the change?  Wouldn't everything in this category still be able to be included, so long as it were to be disclosed to defense counsel with security clearance? 

 

            GEN. HEMINGWAY:  Not if it would result in the denial of a full and fair trial.  We have clearly stated that before.  Many people assumed that anything is going to go in.  And we wanted a clear statement that said if doing that results in the denial of a full and fair trial, it's not going to be admitted. 

 

            Q     So it wouldn't be admitted before the panel; the panel would not be able to consider information that fell into that category. 

 

            GEN. HEMINGWAY:  That's correct. 

 

            Q     So that was just a clarification, then, of what the previous order said in -- or the intent of the previous order -- 

 

            GEN. HEMINGWAY:  Well, if there was any confusion before, there shouldn't be any confusion now. 

 

            Thanks very much.

 

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