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Defense Department Briefing on Military Commission Hearings

Presenters: John Altenburg, Jr., Appointing Authority for the Office of Military Commissions
August 17, 2004 1:35 PM EDT

Tuesday, August 17, 2004 1:37 p.m. EDT

Defense Department Briefing on Military Commission Hearings

           STAFF:  Well, thank you for coming.  And I'd also like to extend a welcome to media representatives that are watching this at the Foreign Press Center, and we may be taking some questions from them if they have some.

 

            Today we have with us Mr. John Altenburg, who is the appointing authority for military commissions, and therefore is the senior person in the commissions process.  As I think most of you are aware, the commission process will begin next week with preliminary hearings at Guantanamo Bay.  We have said and the president has directed that the commissions to be as open as practicable, and with that in mind Mr. Altenburg has agreed to come down and talk to you about the current status of the commissions' preparations and a little bit about the process.

 

            So I call this "Commissions 101," but it's also a little bit of history, probably, too.  He's really here, though, to talk about and preview the process that will take place next week and some of the procedures with respect to military commissions.  He's not here really to address logistical issues that some of you may have with respect to your own attendance at a military commission, and if you have questions like that we'd be happy to entertain those.  My office would be happy to entertain those afterwards if you still have some issues and some questions with regards to that.

 

            So with that, Mr. Altenburg.

 

            MR. ALTENBURG:  Okay.

 

            STAFF:  Thank you.

 

            MR. ALTENBURG:  Thank you.

 

            Good afternoon, everybody.  This is going to take me I think about 15 minutes, maybe 20 minutes, and then I'll take questions.  But I want to take the time to explain to you what the process has been about, and especially what the process will be like next week.  And I want to describe in some physical detail what you should expect next week, what you'll probably see, and maybe more importantly what you won't see next week at any rate.

 

            First of all, there are several ways that the United States government could have proceeded to prosecute alleged war crimes.  It's possible that they could have chosen to use Article III courts, and in fact they're doing that with regard to some people.  They could have done courts-martial in the military.  They could have sought out international ad hoc tribunals.  And there are other ways.  But the government chose for many different reasons to use a military commission process.  It doesn't mean that the others were wrong.  It just means that the government chose on balance, given the nature of the allegations that were being made and I think especially national security interests, that they chose to use the commission process, thinking that that would meet the balanced needs.

 

            I wanted to clarify also what we're not, because people think this word "tribunal" -- and they use it in many different contexts, and the word "tribunal" goes back in the American Army to our beginnings in 1775 and before that used in the British Articles of War a few hundred years before -- even before we were around.

 

            And tribunals cover almost any type of military process related to crimes or investigations.  And tribunals is truly an umbrella word.  So courts martial are a type of tribunal.  Courts of inquiry, which we saw in Hawaii just a few years ago in an incident at sea, are types of tribunals.  And commissions are also types of tribunals.  So the umbrella word is "tribunal."  Commission is a very specific type of tribunal.

           

            And so there are other things going on right now that have nothing to do with my organization or my responsibilities.  There were -- some time ago it was determine that there would be administrative reviews; that each person at Guantanamo would have an administrative review of their status at least once every year, and that's a separate process. That's an administrative review.

 

            After the Supreme Court decisions a couple months ago, there was a determination to conduct another type of review to determine enemy combatant status, and that was in -- consistent with and in response to, I think, the Supreme Court decisions.  That's a separate process.  Those are being referred to by many people as tribunals.  And I have nothing to do with those.  That's being conducted by the secretary of the Navy as the executive agent for Department of Defense, and they are essentially unrelated to the process that I'm involved with.

 

            And finally, we come to military commissions as a tribunal.  And I will tell you just briefly that commissions, called by other names, but these types of commissions have been with us since the Revolution.   The British used a military commission to prosecute Nathan Hale, and some five years later, the United States government, the United States military, at George Washington's direction, prosecuted Major Andre as a spy for the British.  And that was done at a military commission, even though they didn't call it that then.  Commissions were used in the War of 1812 and as late as 1817, in that time frame, commissions were used extensively in the Mexican War by General Scott for a variety of purposes.  And that's where the confusion began with regard to the use of the term "commissions," because commissions is used also many ways, as is tribunals.  In the Mexican War he had separate types of tribunals for violations of the law of war, which he called war councils, and he had another type of tribunal during the Mexican War to prosecute Mexicans who committed crimes against American soldiers in Mexico, and he called those commissions.  Interesting to note historically that he did not prosecute Mexican crime against Mexican; he was fairly enlightened in that regard and wanted to make sure that they had their own system running.

 

            You all know, I'm sure, about the commission cases from the Civil War.  We used commissions in the War of 1898, we used commissions in World War, and the last time we used commissions was World War II.  And that's separate and distinct from the trials at Nuremberg and the trials of Tokyo.   Those were not military commissions; those were international ad hoc tribunals more readily compared, I think, to the current ad hoc tribunal for Rwanda and ad hoc tribunal for the former Yugoslavia.  They were not military commissions.  I believe eight allied nations in Europe conducted various commissions in Europe up through at least 1948, I believe, and we were among them.

 

            I know you're all thinking, and at least one of you or two of you are going to ask me, why did it take so long to get here.  You know, we're finally doing this next week and we had the president's order in November of 2001.  And I would tell you that since I've been involved in March, my concern is not how quickly we get to the military commissions but what's the quality of how we do this, and how -- we want to get this right.  And we haven't done it in 60 years.  There hasn't been a military commission since the late '40s in the aftermath of World War II.  And I'm very concerned because the charter, of course, is to have a full and fair trial for each person that's brought before a commission, and we want to get that right.  And that explains, I think, why it has taken so long to get there.

 

            Now, the commissions themselves.  And in the context of how are you going to make sure this is full and fair, there's a presumption of innocence at these commissions for every accused; the same presumption of innocence that people that are accustomed to the Anglo-American system of jurisprudence understand -- the common law system.

 

            Each detainee has been appointed a defense counsel for free, a military defense counsel -- an experienced military defense counsel, I'd add.  Each, if they choose to -- or each, if he chooses to -- can retain his own civilian attorney at his expense.  There is no requirement that anybody -- that any accused person say anything or make a statement.  And the fact that they are silent and choose to remain silent and -- (brief audio break) --not say anything -- cannot in any way be held against them by the commission.

 

            And perhaps most significantly, in addition to the presumption of innocence, the government, the prosecutors, must establish in the commission room by legal and competent evidence proof beyond reasonable doubt; again, the same standard applicable in the common law system.  And so those are the reasons that we believe that we will have a full and fair trial for each accused.

 

            And I might have added that, consistent with having your own defense counsel, it doesn't help much if you have a defense counsel and you can't do anything.  And in this instance, the defense counsel will be able to cross-examine any government witness, to challenge all government evidence, and to present any evidence that they wish to on their own; to call witnesses and then conduct direct examinations also.

 

            Now to date there are 15 individuals, as you all well know I'm sure, who have had a decision made by the president of the United States that there is a reason to believe that they committed war crimes and that they can be tried by a commission.  Now technically, although there is obviously a lot more people than that at Guantanamo, my responsibility really begins when those files come to my organization.  And so there are 15 of those at present.  And of those 15, four have been processed by the prosecution.  Charges have been alleged.  They've been forwarded through my legal adviser to me for a determination as to whether I would refer it to a commission trial, and in four instances I have done that and we have referred those four to trial.  And that's what we're going to be doing next week, is those will be the very first hearings with a presiding officer and the commissioners and the defense counsel and the accused detainees.  Next week.

 

            Now I mentioned at the beginning that I wanted to give you an idea what to expect next week, and so that's what I'm going to do now.  And I'll talk ultimately about what I think the room will look like and what it will be like when the trials are going on, but I want you to -- and I don't think I really have to remind a group as experienced as this -- but you know, the initial hearings of any trials, especially trials that have a lot of publicity or a lot of attention being paid to them, have many discussions of motions and preliminary issues that need to be resolved.  And what's important is to get to those first hearings and to get some of those issues not necessarily resolved, but at least on the table and discussed so that both sides in the adversary system can make their points and get something framed and shaped so that the presiding officer and the commissions can make some determinations and move forward.

 

            And next week may be interesting, to use a nice neutral word, for you and others because it's the first time in 60 years, but I expect that beyond that it'll be fairly pedestrian because you're not going to see witnesses testifying about what somebody did.  You're not going to see evidence presented that will be an attempt to prove that someone committed a crime.  You're just not going to see that yet.  This is all going to be the preliminary aspects of what's -- of what the accusations are.

 

            And so each accused is to have a hearing next week before the presiding officer and the commission, and I assume that there will probably be motions by both sides.  And it will be a time for the presiding officer to try to again shape the future and determine which cases may go first and who's prepared for trial.  Someone may say I'm not prepared to present a defense or defend this accused yet, and I need "X" time before I can do that.  To steal one of your questions -- I didn't get an interpreter until yesterday.  There's no way I can be prepared.  I need at least "X" more months before I can be prepared, and it will be up to the presiding officer to rule on all those kinds of motions.  And I think that's what you're going to see down there.

 

            Now, I understand that many of you have been there and so you've seen the physical location; you know what it's like.  And I would tell you that the courtroom itself will have a large table where the commission officers will be seated, facing a table just like you've seen in most courtrooms where prosecutors will be seated.  And there will be another table where the defense lawyers and the accused detainee will be seated.  You'll see a court reporter in there taking a verbatim transcript of everything that occurs.  You'll see interpreters in there for cases where everyone's not speaking English.  You'll see an area reserved for eight of you from the pool, and the rest of you will be at another site nearby but viewing it through closed-circuit television.  You'll see provisions made for some international organizations' representatives to be present.  And you'll see security, of course.

 

            And the presiding officer will open the proceedings and initiate, you know, what's going to happen.  The prosecution, I assume -- I don't really know this for sure because I'm not seeing it, but I have some experience in these matters -- the prosecution will then say this is why we're here and this is what's happening, and then we'll start the colloquy between and among the presiding officer and the prosecution and the defense.

 

            Ultimately there will be the trial.  I can't predict when that will occur, but let's just say there's a first trial of an accused with a defense counsel who's prepared to go, and that trial will look very much like any trial any of you have ever observed in the United States.  It'll be very similar in terms of how it's laid out.

 

            The difference will be there won't be a judge alone sitting up in front.  There will be these six commissioners all sitting together.  But other than that, you know, the prosecution will do what you've seen prosecutors do in trials, and the defense will do what you've seen defense lawyers do in trials.  And it'll go on that way.  And witnesses will do what you've seen witnesses do.

 

            That's pretty much the ground that I wanted to cover with you before going to your questions.  So I'm ready for the first question.

 

            Yes, sir?  Right here.

 

            Q     What will the preliminary hearings -- I mean, will the commissioners make a judgment that -- will their role be to, say, make a judgment that enough evidence exists to send this to trial?  It's kind of vaguely how I remember preliminary hearings going in the civilian world back when I covered police --

 

            MR. ALTENBURG:  You're using the term "preliminary hearing" in a different way.

 

            Q     Okay.

 

            MR. ALTENBURG:  And I should clarify that.

 

            You're using the term "preliminary hearing" in the same sense that an Article 32 investigation for a court-martial or even a grand jury investigation is what has to occur before there's a probable cause determination for it to go to trial.  That's not what this is.  That determination has already been made by me, quite frankly.  I determine that there's probable cause to move to trial.

 

            This is a preliminary hearing in the sense that we're not going to present evidence, we're just going to work out the preliminary issues.  How many motions are there going to be by the defense?  Is the defense in fact ready to go?  And in courts-martial and in trials in Article 3 court and in state court, you know, those first hearings are very preliminary in nature.  Think to famous trials that are going on right now and what those first few hearings were like.  There wasn't a lot of substance being addressed.  There was a whole lot of procedure and how we're going to go about this.  And that's what I mean when I say "preliminary hearing."

 

            Q     Is the commission empowered to, say, dismiss?  You know, say -- I mean, could there be a motion for dismissal, it be dismissed, and then, you know, the accused go free?  Is that a --

 

            MR. ALTENBURG:  I don't think -- I don't know.  I mean, there's no telling what somebody will do down there in terms of what kind of motion they make.  But I don't anticipate that people see this as that type of hearing, although someone could.

 

            Yes?

 

            Q     Are the commissioners and the presiding officer going to be there next week, or is it going to just be the presiding officer?

 

            MR. ALTENBURG:  No, the commissioners, all of them, and the presiding officer will be there next week.

 

            Yes, sir?

 

            Q     You talked about the history of tribunals and commissions and justification for them.  The defense attorneys, the military defense attorneys who work under you, say that there's no reason to have a commission when you could do this under the Uniform Code of Military Justice, which was created in '51, after the last military commission, in part in response to these kinds proceedings.  What's the reason for a having a military commission as opposed to doing a court-martial?

 

            MR. ALTENBURG:  Okay.  Well, first of all, I want to make sure I clarify that the defense lawyers don't work for me, they work for their client.  They're absolutely independent.  We are all part of the same organization.  The prosecutors don't really work for me either.  I am the appointing authority.  It's a unique role.  And the prosecutors put together their cases.

 

            The defense lawyers' allegiance is solely to their client.  And -- although I do have a role with the defense lawyers in trying to make sure that they are resourced adequately, and I've worked hard from the very beginning to make sure that their office space was secure; I've supported them in several regards in trying to get them, you know, the interpreters they need and get additional defense lawyers so that there could be a second defense lawyer in each case, and the like.  And I've worked closely mainly with Colonel Gunn in that regard.  So, I mean, as the appointing authority, I have a role to play there in helping them get support, but they don't work for me in any way.  And again, their sole allegiance is to their client.  And that's consistent with representing a client, that they would prefer that it be done at a trial -- by court martial rather than commission.

                       

            And the answer to the question of why did the government choose commissions rather than courts martial is that is a better opportunity, if you will, to protect national security interests and to be careful about what kind of protected information is presented at trial and at open hearing.  And I think that was the driving concern, was the national security interest. When they balanced those two, they felt commissions were the most efficient way to accomplish that.

 

            Yes, sir?

 

            Q     What are the advantages besides being able to close a portion of the hearing, which I understand you can do under a court martial as well?

 

            MR. ALTENBURG:   The fact that a military commission is calculated to try only war crimes and no other types of crimes, and therefore you get the requisite experience and expertise in addressing issues of the law of armed conflict and the like.  And so commissions have always been special for that purpose, as opposed to court martials, which can try cases like that, but court martials for the most part are concerned with felony crimes and uniquely military crimes; you know, the disciplinary types of crimes.

 

            Yes, ma'am?

 

            Q     Have you resolved the issues of the defense attorneys over interpreters?  I mean, some of them haven't been able to get down to GTMO for months to talk to their clients.  Do you think that they're adequately resourced, as you said?

 

            MR. ALTENBURG:  I think that they're -- I think first of all, we're working very hard to solve all these issues, and I'm confident that we're going to get there.  I think that their concern is legitimate.  They should have had interpreters sooner.  And there are many reasons involved in why that didn't work out.  And all I can tell you is that we're taking every step we can to make sure they get that.  And I expect that that would be a basis for some to say that I'm not prepared to go to trial and I won't be prepared to go to trial until I've been working with an interpreter for X period of time.

 

            Q     Because they can't file motions until they've talked to their clients, correct?

 

            MR. ALTENBURG:  Correct.  I mean, I would make that inference also, yeah.

 

            Yes, ma'am?

 

            Q     Is -- sorry, her rank escapes me -- Sharon Shaffer, she's been changed to a judge.  I just wondered what her status is.  Will she still be representing her client?

 

            MR. ALTENBURG:  I am not sure of what Sharon Shaffer's status is.  As of 20 minutes before I came over here I wasn't sure of what her status is.  The defense --

 

            Q     We're just days away, though, so I was just wondering --

 

            MR. ALTENBURG:  I beg your pardon?

 

            Q     We're just days away now, though, so I'm just wondering when that will --

 

            MR. ALTENBURG:  Right, and she was the attorney of record for that particular accused.  And I know that Colonel Gunn is working very hard to resolve that issue and determine what he's going to do about representing that accused.  That's really all I can say at this time.

 

            Q     Can she stay on as his representative as well as being a judge, or --

 

            MR. ALTENBURG:  Well, I think there's a difference of opinion.  I don't think she can stay on and be a judge, no.  No.

 

            Yes, sir?

 

            Q     Sir, could you discuss some of the issues about classified information and testimony?  I assume that it's the intention that the defendants are not given access to classified information.  How is that going to work for them to mount an informed defense and talk to their counsel about issues and charges against them made that they might not be aware of?

 

            And there's a second part, if I may, sir.

 

            MR. ALTENBURG:  Okay.  Want me to do that one first?  (Laughter.)

 

            Difficult for me to speculate about how that's going to work.  It's very possible that the first few trials won't involve any classified information, and I don't personally know what kind of -- whether classified evidence is needed to prove up any of these charges.  You know, it's a different type of analysis that's required to determine whether there's probable cause based on what the charges are to move forward to a trial.  So I'd rather not speculate about how that process will go.  I know that's why they each have a detailed military counsel that has all the clearances necessary to see everything, and we'll just have to see where that goes with the defense lawyers and what their experience is with representing these people in terms of what they're allowed to do and what they're not allowed to do with the accused.

 

            Q     That's something to be played out, you said--

 

            MR. ALTENBURG:  I believe so, yeah.  And I think it's another reason why we're commissions and not courts-martials; it's because you have that type of -- you have more flexibility with regard to those types of issues at a commission.

 

            Q     I think the other half that's related -- not to stray from that -- is how about information that might be used by the prosecution obtained through interrogations that might have used questionable techniques?  And I'd used the word, advisedly, "questionable," that could be challenged, that there's evidence or testimony by other detainees or other people who have given this information under circumstances that one might challenge.

 

            MR. ALTENBURG:  Okay.  That's a good question.  That's a very incisive question, and I can tell you that I think that that will be an important issue in at least some of the trials.  And I say that because to the extent that evidence presented by the prosecution is statements made by accused persons, you know, the issue of the nature of the interrogation will be critical.

 

            Q     (Off mike.)

 

            MR. ALTENBURG:  Or themselves.  You know, there could be statements by an accused that he's made during an interrogation that would be used against him, you know.  I mean, that's what happens in many crimes in our system, you know, that the person makes a statement against his own interest.  I expect that if there is an issue there as to whether that was a voluntary statement -- we're not talking about Miranda rights here, we're simply talking about the credibility of the statement and whether it was made under voluntary circumstances.

 

            And quite frankly, not to do the defense counsels' work for them, because I'm sure they're all over this, but I mean, it's possible that someone would never have been experienced in any circumstances that involved something that would cause his statement to be involuntary but that he had heard that other people had had certain treatment, and that that would cause his statement, someone might argue, that his statement would be involuntary because the only reason he made the statement was because he'd heard that other people had had, you know, things happen to them that he didn't want to happen.

           

            So I mean this is all theoretical and it's all speculative on my part, but all to come back to the point I want to make, which is that the conditions of any interrogations and the conditions under which any statements that have been made are used in evidence will be looked at scrupulously by the defense lawyers and the presiding officer.  I'm sure those will be issues.

 

            Q     That will be played out, too, as we go along.

 

            MR. ALTENBURG:  That's right.  That's exactly right.

 

            Q     You mentioned Miranda, of course saying it doesn't apply, as we all know, but is there a standard to be pointed to?

 

            MR. ALTENBURG:  Well, you know, I think the common-law standard that the defense lawyers apply is one of voluntariness.  And therefore, because it wasn't voluntary, the statement doesn't really have any credibility; he would have said anything.  You know, that type of thing.  And so that, I believe, is the direction that they'll go in.

 

            I know that most lawyers looking at this, you know -- who talk about it over coffee or whatever they, you know, pursue as their drinking interest at a given time of day -- discuss, you know, voluntariness of statements.  Forget the strict codal requirements that we have in the military or the Miranda standard that we have in the country; you know, is the statement worth paying attention to.      And those are subjective determinations to be made by the presiding officer and the commissioners.

 

            Q     To follow on that as well, though, because I understand, last time I was down there, that there are two types of interrogations going on.  One is for national security or the war on terrorism, and the other one is strictly for these commissions.  First, is that correct?  And secondly, if it is, can you use the war on terrorism -- information gleaned from war on terrorism interrogations for the commissions?

 

            MR. ALTENBURG:  Well, first of all, you're correct that there are two types of interrogations and that once the intelligence interrogations are completed, that there's a criminal investigation type of interrogation.

 

            Again, I expect that defense lawyers who think that any of those statements are involuntary will argue that the statement shouldn't come in because it's not credible, because it was made involuntarily, whether it was made to an intelligence person or whether it was made to a criminal investigator.

 

            Q     Are you talking about the war on terrorism ones or the commission ones?

 

            MR. ALTENBURG:  I'm talking about the intelligence ones.

 

            Q     The intelligence ones.  Okay.

 

            MR. ALTENBURG:  The intelligence ones.  I mean, I would assume -- I do assume that the defense lawyers would argue, if they -- if it was their belief that their person made a statement involuntarily, they would argue it should not be admitted into evidence, regardless of who it was made to.  I mean, that's how our system works.  That's what happens.

 

            Does that answer your question?

 

            Q     I think -- yeah.  Sorry.  I'm -- maybe I'm a bit thick today.  But you're saying if they do get hold of this stuff from the intelligence interrogations, they -- if they didn't try to use them, they can argue -- but there is a chance that they still can try to use --

 

            MR. ALTENBURG:  Well, what I'm saying is that the prosecutors wouldn't have the intelligence information, but the defense lawyer would argue, because he made a statement to the intelligence people -- and I'm the defense lawyer arguing that it was not voluntary -- anything else that the prosecution would use, because it came after that, would be, as they say, poisoned by the way it happened in the first place.  That's the argument I believe that a defense lawyer would use.

 

            I don't want to spend too much more time pretending that I'm a defense lawyer, because that's their job, and they're doing it quite well.

 

            Yes?

 

            Q     In some cases, as I understand it, some of these lawyer-client conversations will be monitored, and that that information -- correct me if I'm wrong -- that that information could actually be used against them.  The defense lawyers have expressed a concern that this mean they're not going to be able to fully strategize with their client, and that their client might have concerns, such as anybody they name in the course of that conversation could be pulled in and arrested themselves.

 

            Can you address that concern and how it can be a fair process under those circumstances?

 

            MR. ALTENBURG:  Yes.  First of all, there has been no monitoring of attorney-client discussions, period.  There has been none.  So the effect of monitoring of attorney-client discussions is speculative, because it hasn't occurred.

 

            Q     But the rules --

 

            MR. ALTENBURG:  I'm going to go on.  I'm going to go on.  I'm going to answer your question.

 

            Second, to monitor an attorney-client conversation requires a request made by intelligence.  And I don't know exactly which official, but it has to be authorized:  Yes, okay, we've seen why you want to do this, and you can monitor that attorney and that client when they're talking.

 

            Third, the attorney has to be advised that that's going to happen.  The expectation is the attorney will tell his client that this is happening.

 

            And lastly, any information gleaned from that monitoring will be completely firewalled from the prosecution and the criminal investigators and will be kept in national security intelligence channels only.

 

            That does not address, I think, the other question you asked, which is could that in some way affect the ability for the accused to talk if he knows he's being monitored, and my answer is it may affect his willingness to talk.  You know, even if he knows and even if he believes that it can't be used in any way, shape or form, he may have other concerns, and I'd just leave it at that.

 

            Yes?

 

            Q     Who are -- are all four of the ones who have been charged, going to have their hearings next week, or who goes first?

 

            MR. ALTENBURG:  That's determined by I presume the presiding officer and the prosecution.  I'm not sure how they're going to work that out.  That's a level of detail that I don't involve myself with.  And our expectation is that all four will have hearings.  It's possible that they won't be able to have a hearing for one or two of them for any other -- for some reason.  It's possible that one will take too many days because there's so many issues to resolve.

 

            So, again, that's why I wanted to make sure everybody in here understood, you know, especially those that are going to be traveling down there.  This is the first time we've done commissions in 60 years, and we'll have to wait and see what happens as to how it goes and how smoothly it goes.

 

            Yes, ma'am?

 

            Q     If I could first -- two questions.

 

            First, are the detainees going to be there?  Are the defendants going to be in court next week?

 

            MR. ALTENBURG:  Yes, the detainees will be in court.

 

            Q     And my second question is, there's a new term that has been created by the commission rules, "protected information."  Have you defined that any better than what the rules say?  It's very broad, and I don't know if you think that that could be a bone of contention between the prosecutors and the defense attorneys.  But could you define it for us?

 

            MR. ALTENBURG:  First of all, I haven't defined it any better than is in the rules.  And it's an issue that we're looking at, quite frankly, all the time.  And I would say that, like, many issues that have been involved in this since September 11th of 2001, when people are analyzing issues and looking at both sides, given the nature of what has happened and what we're afraid may happen, people are erring on the side of being conservative and being careful rather than doing something that could lead to information to al Qaeda or others who would have interests in further attacks.

 

            And so with regard to many issues, some very mundane in the commission process, when I look at it and I try to draw a balance -- should I release this name, should I allow this to be published, should we put this up on the website? -- you know, when I analyze and I see that there are national security interests or potential intelligence issues, you know, I'm inclined to err on the side of being careful, you know, until I see better what's happening.  And I think, quite frankly, that explains the presidential order of November 2001 and many things that have occurred since then -- that when people look at -- and then, you know, you have to think back to what everybody in this room felt and thought in November of 2001.  And now life has gone on, you know, and we've seen that there are still dangers out there, but we're not quite the same mind set that we were in November 2001, and so --

 

            Q     But what do you think is going to protect this process from a situation where everybody is so overly cautious that this process is not going to be as open as you hoped it would be, if everyone is looking at this and saying that's got to be protected, that's got to be protected, that's got to be protected.  How are you going to keep that from happening?

 

            MR. ALTENBURG:  I'm going to try to keep that from happening by being mindful of the importance that I'm putting on the openness and the transparency of this process and by the fact that in many ways I have to balance a full and fair trial with the interests of national security, and I've got to do that to the best of my ability.  And so, quite frankly, it will cause me to visit and revisit this issue repeatedly.  And that's what we're doing, even now.  I mean, even last night we were discussing this very issue.

 

            Yes?

 

            Q     Can we expect anything next week in terms of precise results, like, for example, trial dates or something?  Or will there be a period of reflection and delay and it will all be sometime before we get any --

 

            MR. ALTENBURG:  I think it's possible that you'll see a trial date next week, on the one hand.  But on the other hand, I wouldn't be surprised if there isn't a trial date set because so many issues are still to be resolved.  So I mean, it's our hope that we move the process forward and that that would occur, in at least one or two cases, but to repeat myself, I wouldn't be surprised if it's not, simply because of the fluidity of the situation and, again, the fact that it's been so long since we've done this.

 

            Yes, ma'am?

 

            Q     Just to pick up on that -- it's been so long since you've done this -- I mean, the choice of these first four that are going to appear at trial, does that have any determination -- I mean, because in many ways you're just seeing how the rules are going to play out here, seeing how the evidence, you know, the protected evidence is going to play out, no death penalty on these.  Did that have any bearing on your decision about who was going to appear first?

 

            MR. ALTENBURG:  It had no bearing on my decision.  I cannot speak to why the prosecutors brought the case forward that they did, but I was completely walled off from that process.  Once it came from prosecution to the legal adviser and to me, I reviewed each case very carefully and looked at what the allegations were.  I did not -- I wasn't even concerned with why did this come first and why that one second.  I have no idea what their process was.  It's irrelevant to me.

 

            STAFF:  Got another one?  No?  Okay. Those were very good questions asked. I appreciate your time and yours too sir.

 

            MR. ALTENBURG:  Thanks, everybody.

 

            Q     Thank you.

  

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