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DoD News Briefing with Brig. Gen Hartmann From the Pentagon

Presenter: Legal Advisor to the Convening Authority in the DoD Office Of Military Commissions Brig. Gen. Thomas Hartmann
March 31, 2008
            STAFF: Well, good morning, everyone. Welcome to the DOD briefing room.   
 
            As you know, over the past several years we've continued to move forward with the military commissions process. The military has historically used commissions for war crime trials since the days of the Revolutionary War and now into the 21st century. Under the Military Commissions Act of 2006, 15 have now been charged. One has been found guilty of material support to terrorism last year -- and that was Mr. Hicks -- and over a dozen others are in various early stages of the commission's process, including six 9/11 co- conspirators. 
 
            Here again with us today, to announce newly sworn charges against a detainee at Guantanamo and discuss military commissions, is Air Force Brigadier General Thomas Hartman, legal advisor to the convening authority, Office of Military Commissions. 
 
            With that, General Hartmann. 
 
            GEN. HARTMANN: Good morning.   
 
            The Office of the Convening Authority for Military Commissions has received sworn charges against Ahmed Khalfan Ghailani of Zanzibar, Tanzania. The charges, which will be translated and served on Mr. Ghailani at Guantanamo Bay, Cuba, allege facts surrounding his involvement in the attack on the United States embassy in Dar es Salaam, Tanzania, on August the 7th, 1998. 
 
            Six of the nine charges carry the maximum penalty of death. And the chief prosecutor has recommended that this case be referred as capital, thereby seeking to bring this as a death penalty case. 
 
            As you may recall, on August the 7th, 1998, exactly eight years after the United States began deploying troops to Saudi Arabia in response to the Iraqi invasion of Kuwait, twin truck bombs detonated in front of the American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. Within minutes of the first attack on our embassy in Kenya, the American embassy in Tanzania was attacked, killing 11 innocent people, injuring hundreds and causing substantial damage to our embassy. 
 
            Through the sworn charges we are discussing today, Mr. Ghailani is alleged to have participated in the preparation and planning of the attack on the U.S. embassy in Tanzania by, among other things: first, purchasing TNT, detonators and detonation cord on repeated occasions and transporting bomb components to Dar es Salaam, Tanzania; second, moving the bomb components to various safe houses in and around Dar es Salaam; third, assisting in the purchase of the truck used in the bombing; fourth, facilitating the purchase of oxygen and acetylene cylinder tanks, which, with the TNT, were used as bomb components; fifth, escorting the bomb engineer between Dar es Salaam and Mombasa, Kenya, after the bomb had been assembled; sixth, scouting the American embassy in Tanzania with the suicide bomb driver; seventh, meeting with co-conspirators in Nairobi shortly before the bombing; and eighth, fleeing the region of Tanzania and Kenya to Karachi, Pakistan, one day prior to the bombing. 
 
            Based on these allegations and others outlined in the charge sheet, Mr. Ghalaini is charged with the following substantive offenses: murder in violation of the law of war; murder of protected persons; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; destruction of property in violation of the law of war; and terrorism. He is also charged with conspiracy to commit all of the above offenses.   
 
            In addition, Mr. Ghailani is charged with providing material support to terrorism. The charge sheet alleges that after the bombing, Mr. Ghalaini continued in his service to al Qaeda in a variety of ways, including as a document forger and physical trainer at an al Qaeda training camp and as a bodyguard for Osama bin Laden. 
 
            Upon receipt of the sworn charges and following completion of a legal review by me, the convening authority, the Honorable Susan J. Crawford, in her sole discretion, will review the charges and supporting evidence to determine whether probable cause exists to refer the case for trial by military commission, and if so, whether the case should be referred as a capital case. 
 
            In the military commission process, every accused has the following protections: to elect not to testify at trial and to have no adverse inference drawn from it; to be represented by detailed military counsel as well as civilian counsel of his own selection at no expense to the government; to examine all the evidence used against him; to obtain evidence and to call witnesses on his own behalf, including expert witnesses; to cross-examine every witness called by the prosecution; to be present during the presentation of evidence; to have a military commission composed of at least five military officers determine his guilt beyond a reasonable doubt by a two-thirds majority, or in the case of a capital offense, an unanimous decision of a military commission composed of at least 12 members; and to have an appeal to the Court of Military Commission Review, then through the Court of Appeals for the District of Columbia Circuit and to the United States Supreme Court. 
 
            These protections are guaranteed to the accused under the Military Commission Act, and they are specifically designed to ensure that every accused receives a fair trial consistent with American standards of justice.   
 
            The presentation of these charges today again highlights the cooperative efforts of a joint team of military and Department of Justice prosecutors and a multitude of governmental agencies, and reflects the continuing progress of the military commissions.   
 
            It is important to remember that these sworn charges are only allegations of violations under the Military Commissions Act and that the accused is and will remain innocent unless proven guilty beyond a reasonable doubt.   
 
            I'll take your questions. 
 
            Courtney? 
 
            Q    When do you -- when will the charges be forwarded to Susan Crawford, and how long does she have before she is required to refer them back? Is there -- what's the time limit on that? 
 
            GEN. HARTMANN: Yes. They were forwarded to the office of the convening authority this morning. We've received them. I will complete a legal review once I receive a referral package. A referral package is all the documents that the prosecution will present to establish whether probable cause exists to proceed or not. Once I complete the legal review, I will present my legal review and the referral package to Judge Crawford. There's no specific timeline on that, but I'll move as expeditiously as I can.  
 
            Yes? 
 
            Q     Can you explain the movement towards the death penalty? On some of the other charges that have gone out, they have not been focused on the death penalty. Why is this particular individual -- 
 
            GEN. HARTMANN: The question of the death penalty is a very serious one, and we take all life very seriously in the United States and with regard to the military commissions. The prosecution makes a determination at this point whether they want to bring the case as a death penalty case. That's their discretion based upon what they're charging, based upon the facts, their analysis of potential aggravating factors, their analysis of the total circumstances around the case.   
 
            But that's just the first part of it, because then the case comes to me for legal analysis, and ultimately it's Judge Crawford's decision as to whether the case is referred or actually goes to trial as a capital case. So each case stands on its own based upon the facts, the law, the analysis of the prosecution. So some cases are referred and sworn capital, some are not, depending upon the view of the prosecutor. 
 
            Q     Can you give us more details about where he was arrested, when? 
 
            GEN. HARTMANN: Yes. He was picked up in July of 2004 in Pakistan. 
 
            Q     By the -- excuse me -- by the -- by whom? By -- 
 
            GEN. HARTMANN: I don't know who picked him up. 
 
            Q     Can you -- if the convening authority -- if he refers this to trial as a capital case and so on, how early would it -- what is the earliest point at which that trial might begin? 
 
            Before the end of this year? 
 
            GEN. HARTMANN: One can never predict when a trial would begin in any system. In our case, we have to go through a number of steps. Following the referral by the convening authority, then there are 30 days following that that are statutory, when the accused is arraigned, and that means the accused is brought into court, given the opportunity to get an explanation of the charges, his rights to counsel and to enter a plea. And then 90 days after that, under the statutory guidelines, was when we would assemble the court or bring in the jury. 
 
            Now, in reality, most of the time you'll have motions and discovery and things that go on that push that 90 days after the 30 days out. So it's hard to predict, but the process will move as quickly as it can. We will move as quickly as we can in the convening authority's office to get those statutory timelines started. 
 
            Q     Can you tell us how many capital cases have been selected? Now is this the seventh? 
 
            GEN. HARTMANN: This is the seventh that has been sworn as a capital -- the first six were sworn under the 9/11 -- and that's still being evaluated by Mrs. -- by me and by Mrs. Crawford. Mrs. Crawford will make the ultimate decision in those, and then this one is also being recommended for a capital case. So that's seven, yes. 
 
            Q     Is there a timeline for how long she has to consider whether she will refer the charges? 
 
            GEN. HARTMANN: There is no specific timeline as to her. It's only a specific timeline after she makes the referral decision. 
 
            Q     So where are we right now with the previous six referrals that -- 
 
            GEN. HARTMANN: The previous six referrals are in my bailiwick, and there are thousands of pages to review. We've been reviewing those pages. I've been reviewing the evidence that's been presented in the referral package, and I hope to make a recommendation to her, a legal review, pretrial advice to her, relatively soon.   
 
            Q     Has she sent this back to you? 
 
            GEN. HARTMANN: No. She has not received it. She has not received it. I have received it, and I'm reviewing. 
 
            Yes, sir? 
 
            Q     Just to be clear about the procedure, if it is a -- turns out to be capital case, the jury will consist of 12 members. Is that correct? 
 
            GEN. HARTMANN: At least 12 members. Could be more, but it must be a minimum of 12.   
 
            Q     And to impose a death sentence, all 12 or -- it would have to be unanimous -- 
 
            GEN. HARTMANN: Unanimous. 
 
            Q     But if I read this correctly -- please correct me if I'm wrong -- guilt, guilt can be determined by two-thirds? 
 
            GEN. HARTMANN: Yeah, let me help you with that. In a capital case, should Judge Crawford refer it as a capital case, the finding of guilty, on the issue of guilt and innocence, must be unanimous. So all 12 have to concur.  
 
            Then you have evaluation of aggravating factors. All 12 have to concur on those. Then all 12 have to concur on the sentence of death.  
 
            And then there are four levels of post-trial review, which has an extraordinary set of rights available.  
 
            Q     But everything has to be unanimous? 
 
            GEN. HARTMANN: Yes, sir. Everything has to be unanimous.   
 
            Yes? 
 
            Q     I believe in your previous announcement you mentioned that the estimate that you foresaw was maybe May or June for when we might see some action with regard to the actual proceedings starting off in Guantanamo. Is that still accurate, or -- 
 
            GEN. HARTMANN: With regard to what kind of proceedings? 
 
            Q     May or June, I believe, is what you said -- 
 
            GEN. HARTMANN: What I said -- if you're referring to the 9/11 charges, I expect you will see -- subject to Judge Crawford's final review, I expect there would be an arraignment. If she refers it to trial, I think you'll see an arraignment sometime in the spring. That's where -- that's right -- 
 
            Q     You're still on the timeline --  
 
            GEN. HARTMANN: Yes. Yes. 
 
            Okay. Thank you very much.   
 
            Q     Thank you.
 
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