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Defense Department Briefing on Preliminary Hearing for Guantanamo Detainees

Presenters: Brigadier General Thomas Hemingway, Legal Advisor for the Office of Military Commissions
August 26, 2004 1:30 PM EDT

Thursday, August 26, 2004 1:34 p.m. EDT

Defense Department Briefing on Preliminary Hearing for Guantanamo Detainees

          STAFF:  Good afternoon and welcome.  And a special welcome to our members of the press in the media center in Guantanamo Bay. We have with us today Brigadier General Tom Hemingway, who serves as the legal adviser to the appointing authority for the office of military commissions.  As you know, the commissions’ process began this week with preliminary hearings at Guantanamo Bay, Cuba.  Military commissions provide a full and fair trial while protecting national security. Part of our commitment as the commissions process continues is to ensure the transparency of this process, which includes having members of the press and non-government organizations observe the commissions’ proceedings.  We also try to update you periodically from the Pentagon with senior defense officials.  And with that in mind, we have General Hemingway, who has agreed to answer your questions about the ongoing commissions process.

 

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

 

            GEN. HEMINGWAY:  I think, as Flex told you, I'm here to talk about process.  I cannot answer questions about any of these specific cases and the issues on which I'm ultimately going to have to make recommendations to the appointing authority.  It's been our goal   all along to have a process that is fair.  We feel that the process that has been set up complies with international norms, and I think you've seen that we've got some very talented counsel on both sides who are working this issue.

 

            The United States, from my point of view, is taking some risk in conducting war crimes trials while the conflict continues. Historically, these kinds of tribunals are conducted after the conflict is over and there's not as much in the way of a national security concern as there is now.  But the procedures have been set up to not only provide fairness but also to address the national security concerns that the United States has.

 

            And with that, I'm open to questions.

 

            Sir?

 

            Q     General, Charlie Aldinger.  You say that there are talented attorneys on both sides.  The military defense attorneys are charging that these trials virtually -- virtual mockery of justice -- a mockery of justice.

 

            I mean defense attorney Hicks' said yesterday -- he's a major in the Marine Corps, he's a military lawyer -- he says:  "It's an aberration that has no rules of evidence.  He" -- meaning Hicks -- "is facing an unfair justice system that's not tolerated anywhere else in the world."

 

              And these people are demanding that these charges be dismissed on a number of grounds, including the fact that some of the people that are serving on these commissions fought in Afghanistan and therefore are biased toward anybody who's there.  How would you answer that?

 

            GEN. HEMINGWAY:  Well, as far as any complaints or motions that he wants to file, I will address those when they're presented to us.

 

            As far as the system is concerned, I would point out that our rule of evidence, that anything that tends to prove something can be admitted, is the same standard that is used before existing international tribunals.  The International Criminal Court, the International Criminal Court for the Former Yugoslavia, the International Criminal Court for Rwanda had the same standard of evidence.  And a lot of attorneys, I think, complain about the fact that that admits what in the legal profession is called hearsay, but you get outside of the Anglo-Saxon jurisprudence area and you will find many countries admit that evidence.  And the international tribunals certainly do.  So this is not unique in that regard.  It's a system that much of the world recommends.  So other than addressing the specific allegations that he wants to make and motions, I can't comment further.

 

            Q     But again, sir, the attorneys have made the point, they're generally saying -- they're not just making points here, but they're saying that the whole system is biased.

 

            And the trial for a Yemeni today, or the hearing for a Yemeni today broke up in virtual chaos.  The ruling judge kept asking him to slow down because the translators couldn't keep up.  And the Yemeni tried to say at one point, quote, "I am from al Qaeda, and the relationship between me and September 11th" -- and he was cut off immediately by the presiding judge, who ended the hearing.  Why?  Is that because of the secrecy factor here?

 

            GEN. HEMINGWAY:  No.  It sounds to me like the presiding officer was trying to make sure that the commission only heard evidence that was properly introduced.  But without seeing the transcript, I can't answer your question any more definitively.

 

            Q     Are any changes being considered to address these claims the trials are not -- the hearings or the commissions are not fair? Are you making changes as you go along, I guess; is this a work in progress?

 

            GEN. HEMINGWAY:  Well, I think you've seen that we have made adjustments to the process as we've gone along.  For example, a number of months ago we made adjustments to some of the procedures that call for monitoring.  I might point out, however, that we have never used them.  All of the conversations between attorney and client have been unmonitored.  But we did make changes to that particular directive, and it was after we made those modifications that the president of the ABA said the system was fair.

 

            Q     Just to belabor the point, one more point.  How about the fact that some of the people who might be serving on these commission may have fought or served in Afghanistan and therefore couldn't give fair decisions for these people who were captured fighting on the other side in Afghanistan?

 

            GEN. HEMINGWAY:  I'll have to look at whatever statements they made during the voir dire examination to determine what I'd recommend, whether they be replaced.

 

            Q     I see.

 

            GEN. HEMINGWAY:  I have not had the benefit of hearing exactly how they responded to questions of counsel.

 

            Q     You mean when they were cleared --

 

            GEN. HEMINGWAY:  When they were going through the voir dire examination.

 

            Q     Is there a way to challenge the commission members at this point?  Or is there no question as to their ability to serve?

 

            GEN. HEMINGWAY:  It's my understanding that challenges have been made by counsel in each of the cases to date, and those challenges will have to be considered by the appointing authority, based on recommendation from his staff, whether or not those people should be replaced, whether or not there is indication that somebody else should be there.  Understanding, of course, that we're interested not only in whether there's bias, but whether there's the perception that somebody wouldn't be as objective as we would like to have.

 

            A question from Guantanamo?

 

            Q     General, it's Carol Rosenberg with the Miami Herald, at the press center in Guantanamo Bay.  Monitors here have detected persistent translation problems in the court proceedings.  General, what's the problem?  Is a solution being worked?  And who has the authority to do it?  Thank you.

 

            GEN. HEMINGWAY:  Well, I haven't been told precisely what the problem is, but I can tell you that each one of the accused has a linguist with them who is privileged to object immediately whenever they find problems with translation.  We have a contractor who is providing translators to us.  Any time we've found deficiencies, we've brought in other translators.  But I'll have to look at each specific instance to make a determination whether or not we need to bring in a new team.

 

            Q     I guess I'd like to follow up, sir, if I may.  This morning a defendant didn't have a linguist because the linguist was assigned to the defense attorney who he didn't accept.  So as a result, on the record, the word "decision" became -- excuse me, sir -- on the record, the word "confession" became "decision" because of translation problems.

 

            GEN. HEMINGWAY:  Well, it was my understanding that that was corrected during the course of the proceedings.  And I was unaware of the fact they had requested another linguist.

 

            Q     General, this is Toni Locy with USA Today.  I want to ask you a hypothetical question here.  Under the rules, is it proper for a presiding officer to send motions or issues that are not dispositive up to the appointing authority?  And I have in mind such an issue as a defendant's request to represent himself.  Is it proper, or should the presiding officer rule on such a motion?

 

            GEN. HEMINGWAY:  Well, I don't think it's improper.  He is not required to hold all of those motions to himself.  If he wants a decision from the appointing authority, he's privileged to ask for that.  Now in this particular case, I think what they're asking for is an exception.  But again, I haven't seen the way the request was couched by counsel.  But I see absolutely nothing improper by the presiding officer requesting for a ruling from the appointing authority.

 

            Q     A follow-up, sir, if I could.

 

            GEN. HEMINGWAY:  Sure

 

            Q     Where in the rules does it provide for that?

 

            GEN. HEMINGWAY:  Provide for what?

 

            Q     Provide for the presiding officer to seek out an opinion from the appointing authority.

 

            GEN. HEMINGWAY:  I find nothing in the rules that prohibits it. You asked me if I knew if there was something that made it improper, and I find nothing that makes it improper.  There's nothing that prohibits it.

 

            Any question here?

 

            Next one from Guantanamo.

 

            Q     Yes, General, Scott Higham with The Washington Post.  How are you, sir?

 

            GEN. HEMINGWAY:  Good, thank you.

 

            Q     If a defendant makes an admission that could be considered an admission of possible guilt, can that admission be used against that defendant if he has not been sworn in?

 

            GEN. HEMINGWAY:  Are you referring to the case in the instance that occurred this morning?

 

            Q     I am, sir.

 

            GEN. HEMINGWAY:  Well, I think the -- it's my understanding that the presiding officer instructed the commission to disregard that statement and not consider it as evidence.  And that's a kind of cautionary instruction that I think you could anticipate and you probably would see in many judicial proceedings in the United States, in other jurisdictions.

 

            Q     Even when that admission goes to the very heart of the allegation?  How can the jurors ever forget that they heard that admission?

 

            GEN. HEMINGWAY:  Well, that's up to the presiding officer to determine, along with counsel who were present at the time the statement was made.

 

            Q      General, it's Jess Bravin from the Wall Street Journal.

 

            GEN. HEMINGWAY:  Good afternoon, Jess.

 

            Q     We understand that the proceedings are not being tape recorded or video recorded, and in a case like this where -- what the defendant actually said is at issue, I wonder what the rationale is for having no recording of this historic proceeding.

 

            GEN. HEMINGWAY:  Well, you have court reporters there who, I'm sure, have some kind of backup system.  But most of the reasons we have made the decisions we have have been associated with national security.

 

            Q     So there is a backup system?  There is a recording being made --

 

            GEN. HEMINGWAY:  You'd have to talk to the court reporters about what the precise system is that they're using.  I'm not familiar -- the court reporters there are Marine Corps court reporters, so you'd have to check what kind of technical system they're using.  I can get you additional information in that regard and provide it to you.

 

            Q     And just one follow-up.  On the national security issue, these are open proceedings that we have been able to watch in person, as have representatives of some nongovernmental organizations.  So what would the national security threat be by retaining a recording of them so it could be reviewed in case of a question such as the one that arose today?

 

            GEN. HEMINGWAY:  Well, there a number.  But as you know, there is a time delay on the feed to the remote installation where the media are also viewing.  That's done for national security reasons.  And if there is improper disclosure of secure or classified information during the course of the proceedings, the commission room would have to immediately be cleared.  And of course, people who were in there would have to be given a cautionary instruction.

 

            Q     General, hi.  It's Carl Rochelle with NBC News.  In the first two cases that we heard, the panel, at least five of the six panel members were challenged.  And the challenge was going to be referred to the appointing authority, which is the authority that appointed the people in the first place.  Isn't that a conflict?

 

            GEN. HEMINGWAY:  Well, you have to understand that the information that was disclosed during the course of the proceedings may be in addition to and contrary to the information that the appointing authority had available when the people were selected, much as when people are selected for a civilian jury they have a certain amount of qualification that they're required to meet in a civilian jurisdiction, and when they get into court, sometimes they find there are disqualifying bits of information that would render them unsuitable for service on a jury.  And it's much the same way here. When that additional information is presented, then I think that the appointing authority is not conflicted out; he can take that into consideration and present other -- nominate other people, who, I might add, would go through the same voir dire process as those who have already been there.

 

            Q     General, some of the information that was used to select them, the fact that they needed to have -- were preferred to have functioned in a combat command, should have at least pointed the way that some of the combat command was in Afghanistan.  Wouldn't that information have been available to you as the appointing -- well, you're not the appointing authority, but wouldn't it have been available to the appointing authority?

 

            GEN. HEMINGWAY:  Well, I'm sure that the assignment history would be available to the appointing authority.  I don't know without looking at an individual commission member what was on the sheet.  But simply the fact that an individual has served in a combat zone I would not consider necessarily to be disqualifying.

 

            Q     General, Charlie Aldinger with Reuters again.  Have you seen problems here such as translation and broad challenges that perhaps you didn't expect?  And are you addressing -- could this cause some kind of delay in the actual beginning of the commissions?

 

            GEN. HEMINGWAY:  Well, I have not seen all of the motions yet. What defense counsel have provided are notices of motions that they intend to file, and I think there's been anywhere from 12 to 17 motions per case.  That comes as no surprise.  Without actually seeing the motion, I can't tell you whether or not there's anything that's a surprise to me.  I can tell you the numbers and the fact that they cover a broad range of issues is not a surprise.  We've had some advance notice from the defense counsels' media statements that there would be a broad range of issues that they would present at the time of the commission.  So that in itself comes as no surprise.

 

            Q     Do you expect any delay?

 

            GEN. HEMINGWAY:  I have not seen the dates that the presiding officer has set for future proceedings, but we will do everything we can from the appointing authority's point of view to see to it that those timelines are met.

 

            Yes?

 

            Q     General, Vince Crawley with the Army Times.  You mentioned the Marine court reporters.  Do you know when and if their transcripts would become public record?

 

            GEN. HEMINGWAY:  We hope to have transcripts within 48 hours, but --

 

            Q     Is there something that would prevent -- what would prevent that from becoming?

 

            GEN. HEMINGWAY:  Just simply the time it takes them to transcribe.  You know, our goal is to get them up and out as fast as we possibly can, but I'm not a court reporter so I don't now what's humanly reasonable in that regard.

 

            Q     I'm also not clear on the rationale for not making an official recording of the proceedings, because you would have control over that.  You could redact it for a national security --

 

            GEN. HEMINGWAY:  Well, again, you'll have to find, and I'll have to find out for you, exactly what kind of system it is they're using. I really am not familiar with it.

 

            Q     General, Barbara Starr from CNN.  You said at the beginning I believe, on this question of linguists, that you would have to look at the contractor you have and see whether you had to, quote, "bring in a new team."

 

            GEN. HEMINGWAY:  I'm not talking about a new contractor necessarily as opposed to individual translators.

 

            Q     Could you just help us understand your thinking on this? In other words, is there something that makes you even raise that as an issue, that the current translators may not be doing the job you want them to, and the fact that you have raised this issue now that the current one element of the staff of the proceedings may not be sufficient.  Does that jeopardize the proceedings that have taken place --

 

            GEN. HEMINGWAY:  Well, I'm not talking about replacing the entire group of translators down there.  We look at that on an individual basis.  We have had, I know, one instance -- and only one that I'm aware -- where the defense team was not satisfied with a particular translator and we did what we could to find them somebody else to meet their needs.

 

            Q     General?

 

            GEN. HEMINGWAY:  Yes, Guantanamo?

 

            Q     Yes, General, it's Jackie Northam with National Public Radio.  I just want to go back to what happened today in court.  The defendant admitted that he was an al Qaeda member.  A presiding officer, of course, as you said, stopped him, warned the jurors that he wasn't under oath, couldn't be used as evidence.  But that whole incident has fueled some speculation here that perhaps, you know, there could be something like a mistrial.  And I want to find out:  Do the rules of the commission allow for a mistrial?  And if so, who has the authority to call one?

 

            GEN. HEMINGWAY:  Well, I think the appointing authority, if necessary, could convene another commission.  But you know, without actually seeing the transcript of what happened, I couldn't tell you whether or not that's going to be a requirement in this particular case.

 

            Q     Okay.  But the rules do allow for it?

 

            GEN. HEMINGWAY:  Well, again, there's nothing that prohibits the presiding officer from making such a declaration.

 

            Q     General, my name is Nadia Bilbassey. I'm from Al-Arabiyah Television.  And I just want to tell you that for the Arab audience, they are following these trials with great interest.  And do you think that the presiding officer has the right to ask Mr. Bahlul this morning if he had studied international law when he asked to be represented by himself, when five officers on this military commission lack any legal background?  What does it say to you about the American justice system?

 

            GEN. HEMINGWAY:  Well, it says to me that the presiding officer was trying to carefully determine whether or not the individual could capably represent himself if that opportunity were presented.  And I think it was a very appropriate thing to do.  Now as I say, I haven't seen the transcript so I don't know exactly the precise language that was used, but it sounds to me like the presiding officer was trying to be as cautious as he could in making the determination.

 

            Q     I just wanted to follow up on the translation problem because what we've seen so far, it wasn't just today, it was yesterday, it was also in the tribunal issue.  And I think the level of translation is extremely important here because we have not seen a really accurate translation that would reflect into the effect that we want to see here.  Is this any mechanism that you're going to put to try to address this issue immediately?

 

            GEN. HEMINGWAY:  Well, we are always interested in making certain that we have accurate translations.  As I mentioned to another media representative earlier, each one of the defense teams has a linguist assigned, and they are privileged to object any time they don't think the translation is appropriate.  If we find that we need to enhance the capabilities, then we'll try to enhance those capabilities.

 

            Q     Hello.  This is Susan Candiotti with CNN here in Guantanamo.  I'd like to know, given the questions that have been raised so far regarding qualifications, regarding impartiality, about the quality of the translations that have happened here in the last a few days, how concerned are you about the public's perception so far, after the first three days now, as to the fairness of these proceedings?

 

            GEN. HEMINGWAY:  Well, I think that the public has been able to see that these proceedings are open, they're transparent, that counsel on both sides are capable, and that the government is doing everything that we possibly can to see to it that any issues regarding translation are appropriately resolved.

 

            So in terms of public perception, am I concerned about it?  No. I think that we can be satisfied that we have set up a fair system and that we are openly addressing all of these issues that you raise.

 

            Q     Sir, it's Toni Locy from USA Today again.  When the president ordered the Pentagon to create the commissions, one of -- the advantage that military and White House officials cited was the commissions would be faster and more efficient than the civilian courts.  From what we've seen here this week, at least so far, there seems to be quite a bit of confusion and delay.  Are you still confident that this new system is going to work?

 

            GEN. HEMINGWAY:  Yes.  I'm confident the system is going to work, and if you want to compare it with other systems, you can compare it, if you like, with some of the international tribunals that started two and a half years ago and are still going on.  So we have just taken really a very small initial step.  We anticipated there were going to be considerable motions that we would have to address at the initial part of these proceedings.  These are important cases.  They are complex cases.  So they are not going to be cases that are tried overnight.  But we will try to conduct all of the proceedings with some degree of dispatch, bearing in mind that we can't do it so fast that it would become unfair to the individual on trial.

 

            Q     Hi, it's Jess Bravin from The Wall Street Journal again. Following up on Toni's question, regarding Mr. Bahlul's statement today that he is a member of al Qaeda and the presiding officer's immediate stopping of the proceedings, isn't the whole point of the commissions the ability to use such evidence without all the legal technicalities and rigamarole that gum up the civilian courts?  I mean, doesn't the fact that he made a statement like that, and it can be instantly admitted -- the whole purpose of doing this.  After all, he said I'm making the statement without any duress from the United States government; I'm a member of al Qaeda, and my connection to September 11th is" -- stop.

 

            GEN. HEMINGWAY:  I think the presiding officer has already ruled and instructed the commission that it was not appropriately introduced, was not evidence, and that they were to disregard it.  And although our procedures may be different than some, as you call them, civilian tribunals, we find -- we believe that they are consistent with fairness.  So they're designed to expeditiously and fairly try people consistent with our national security concerns.

 

            One more question?  Sir?

 

            Q     Do you have a schedule for when the actual trials will begin?  And how long will each one be?

 

            GEN. HEMINGWAY:  I know that the presiding officer has set a briefing schedule for the motions that have been filed, but I don't have the dates in each one.  You'll have to wait and see what dates he sets for the beginning of the proceedings.  As far as how long, I couldn't begin to give you a reasonable assessment of that.

 

            Q     Thank you.

 

            GEN. HEMINGWAY:  Thank you very much.  

 

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