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SecNav Briefs on Review Tribunals

Presenter: Secretary of the Navy Gordon England
July 16, 2004 11:00 AM EDT

Friday, July 16, 2004 11:00 a.m. EDT

SecNav Briefs on Review Tribunals

SEC. ENGLAND:  Good morning.  Great.  Good to see you all again.

 

Okay.  If we haven't met, I'm Gordon England, Secretary of the Navy but not here in that role, as we explained before.  Rather, [I’m] here representing the Secretary of the Defense specifically on the subject of combatant status review, of the tribunal that we're setting up.

 

This is the third time I've met with you.  The first time, we dealt with the annual review boards.  Last time, about a week ago, we were just starting the tribunal process.  I said I'd be back in about a week to tell you where we were, so this is a status report today of what's happened in the last week.

 

We will have time for some questions afterwards.  I don't have a lot of time this morning, but we'll be able to handle some questions.  Again, status.  I know everybody wants to know about the endgame. We're not at the endgame yet.  But I'll -- we'll keep doing this so you know where we are in this process.  Hopefully I'll answer most of your questions as part of my comments.

 

First of all, last time we met, I said that we had named a convening authority, the person responsible, military person responsible.  I said at that time we had named Admiral Jim McGarrah and he would be in on Monday.  I want to introduce him to you today. Admiral -- so you know -- you know who the admiral is.  So in the future you'll also be -- I think have a lot of interface with Admiral McGarrah because he is running the process.  So he's available and, in fact, he may be the one talking to you periodically in the future instead of myself.

 

Again, limit it to this responsibility today.

 

Last week I said that we had 10 days to notify every detainee. That was part of the order, as you'll recall.  So we have now notified every detainee at Guantanamo, and they have been notified of their opportunity to contest their status as an enemy combatant.  So they have got that notification.  It has also been notified that they will be assigned, if they wish, to have a personal representative who can assist them in the tribunal hearing.  They have also been notified that they can seek review of their detention in the U.S. courts.  So we've notified all of the detainees at Guantanamo.  That was either done individually or in groups, and we had all the appropriate interpreters.  And so they were physically given a piece of paper outlining all this, and if they could not read we had someone there who would orally state their rights.

 

I will tell you a little bit of the feedback, and that is about 90 or 95 percent responded positively; that is, most of the people who received this information listened, read and asked questions.  And their most commonly asked questions were:  When can I meet with my personal representative, and when will the tribunal process begin?  About 5 percent of the people responded negatively; that is, crumbled up the notice and threw it on the floor, whatever.  But most of the people responded positively and were anxious to get this process under way.

 

This morning, Friday, we have about 14 people on the ground and we'll have more people heading down next week.  So we have 14 people on site now, and they are undergoing familiarization, just understanding the area and areas to be used, and the security, et cetera; how the process will go on.  And that will be going on for the next couple of days.  So our people are getting familiar with the area, how it's going to operate.  And that will go on for a few more days next week.

 

We should have personal representatives -- our plan is -- starting to meet with detainees next week.  So the first contact between personal representatives and detainees will be taking place next week.

 

Our plan is late next week, or early the following week, we will have the first tribunal hearing.  So the very first hearing should be this coming week, based on our personal representatives meeting with the detainees this week.  So early next week or -- pardon me, late next week, early the following week we should have the first tribunal. That's our plan today, unless we run into unexpected problems.

 

We're still on the plan that we discussed last week; that is there will be three tribunal teams, and they will each operate in parallel, concurrently.  And each team, we are still hopeful -- again, optimistic number -- that we can do 24 tribunals a week with each team for a maximum of 72.  That will be when we get up to speed, everything running smoothly.  And again, since we haven't had our first one, I say that's our hope, that's our expectation, I don't know if we can meet that rate, but we will try to meet that rate.  Whatever rate, we're confident that we will finish this, on the outside, three to four months.

 

Keep in mind that some of these hearings could take longer.  As we discussed last week, it depends on a person -- you know, if they want a witness or if they want an affidavit from their country or -- so in some cases it could just be a more lengthy process than other cases.  But again, three to four months should have it complete, and we'll start late next week, beginning of the following week.

 

The question came up last time:  Are they going to be open?  And so our plan is to have open hearings.  We will have -- we'll have a small media pool, again looking at physical facilities in doing this, but probably about three people.  We'll have the media, all of you, work that out with our media people exactly how that all works. Again, people have to get clearances, et cetera, to be there.  But we will work that out.  Our media people will work that out.  And they will be able to observe the tribunals.

 

And hopefully that -- that won't be in place right away, but it will be in place, hopefully, here in a couple of weeks.  So we have somewhat -- going on under 600 people there.  You know, media should be there for the vast majority, if they care to be there.

 

The one thing I did not accomplish that I told you I would -- I thought that earlier this week we would have the written procedures. As you will recall, for the other process, right, the annual review process, we had very detailed procedures, which we handed -- we handed you now, I guess, a month or so ago, so everyone would have the details of how -- the annual review, and indicated we were preparing very detailed procedures for the tribunals.  We're still working them. We're still coordinating and getting agreements.  So we're probably at the 95, 98 percent point on those or on that document, but we're not quite there.

 

Hopefully we'll be there today or Monday, but as soon as we get the detailed procedures, we'll make those available to you, just like we did the prior procedures.  So again, this is going to be very open. We're just not quite there yet, but we're close.  So give us another day or two.

 

And keep in mind the procedures you get, like the ones for the annual review, will be revision zero.  As we learn and as we get inputs, we'll continue to modify them, but we'll also continue to make them available, so everybody knows the process.

 

So that's where we are.  Status report -- we're getting closer every day to actually doing the tribunals.  And we're moving along the timeline that we anticipated, with the one hiccup with our procedures, but they're getting close.  And hopefully we'll have them for you shortly.

 

Okay.   (We have the first hand up?).

 

Q:  Have you determined how many personal representatives there will be and how many clients they will have?  And can you tell us how you can anticipate that these early tribunals especially will be fair to the prisoners, because they're happening on such a short timeline that they -- you know, they won't have a chance to get affidavits or witnesses there.

 

SEC. ENGLAND:  Well, but if they want affidavits or witnesses, I mean, they won't be first.  So people who feel like they can -- I mean, a date is available and they're ready for a hearing and they're anxious to do it, and so obviously we'll do those.  If it's going to be lengthy, we'll just schedule those folks later.  So I don't believe that will be an issue.

 

The first question, how many, we'll have to work through and see. We're going to have enough personal representatives to get this all started and get a feel for, you know, how long it takes and the complexity, but it's going to be different because some detainees will require more attention than others, in language, et cetera.  So we'll have as many as it takes, let me answer it that way.  Whatever it takes, we will staff accordingly to maintain, try to get to our rate of 72 each week.  So, however many people we need to bring into this command, we will do that to meet that objective.

 

And we'll learn as we go.  Again, we haven't had the first one yet.  A lot of it's just planning.

 

Yes, sir?

 

Q:  Sir, what you're saying is the first of these hearings will be closed, and then at some point you're going to be opening them up.

 

SEC. ENGLAND:  Well, we will open them as soon as we can.  I mean, they're really not closed.  It's just physically a matter of getting a pool together, getting clearances.  And frankly, we would also like to sort of go through a process and understand -- make sure it's orderly and everything is in place, because this is a whole new approach for everybody.  I mean, there are security issues and all that.  So we just want to get the process and procedure in place.

 

So again, we may go through, you know, a week or something of getting this in place while the pool is getting clearances and all that.  But as soon as we can do it, I mean, we'll do it.  The intent is to do this as soon as possible.  There are almost 600, so I mean, you know, you'll have the opportunity to be there for just about all of them.

 

Q:  Can I also ask -- last week we asked you about what action the government is taking to ensure that the detainees have access to lawyers in order to go into U.S. courts to challenge their detention. Are you able to give us some details on that now?

 

SEC. ENGLAND:  No, I can't because that's really not my -- that's really Justice Department.  And Justice Department handles that aspect of it.  That's the court system.  So we'll do whatever we can to assist the Justice Department to whatever extent we can at Guantanamo, but that's really Justice Department handling that aspect of it.  And while they're working that aspect, we're moving along with the tribunals, which is really my responsibility.

 

Q:  Mr. Secretary, you don't have all the procedures done yet, as you told us.  But could you give us some idea of how things will go, in these terms: A detainee comes before this tribunal, and presumably the detainee who does so is -- to protest his innocence, and say I'm not an unlawful combatant, and I didn't do such and such.  Is the detainee confronted with accusations, charges, the intelligence that may show otherwise for him to answer?  Or is it just a matter of the detainee and his representative representing his case.  Can you give us some sense of how things play out?

 

SEC. ENGLAND:  Yes, I can.  Thank you.  I can give you a sense for that.

 

We will have ahead of time -- before the tribunal the personal representative will give an unclassified statement to the detainee so that the detainee understands, on an unclassified basis, why it is he's being held as an enemy combatant.  So unclassified data will be made available to the detainee, not classified data.  And then the personal representative will work with the detainee for any information the detainee wants to bring forward.  We'll make sure that that is brought forward -- again, with the right interpreters, et cetera -- to make that information available to the tribunal.  So whatever information the detainee wants to bring forward, and the detainee will also know, in an unclassified sense, why he's being held.

 

Q:  Is there -- in that sense, sir, the detainee learns this unclassified information, is able to respond and make his defense with the help of his representative.  Is there any party in this proceeding that represents the other side that says, no, we dispute that?  I mean, is there someone who fills a quasi role above prosecutor or the government --

 

SEC. ENGLAND:  There is --

 

Q:  -- opposing the detainees protestations of innocence?

 

SEC. ENGLAND:  I'm not sure it's "opposing."  I mean, the whole objective is to bring forth all the data.  So this is a fact-based determination.  It's administrative.  This is an administrative procedure -- bring data together.  So there will be a person -- brings together data, government data, information that we know in the federal government about the detainee.  So all the data comes together before the tribunal.

 

So again, fact-based -- this isn't guilt or innocence.  This is look at facts -- here's a person:  are they, are they not an enemy combatant?

 

Q:  Is it the case -- it's 15 -- is it? -- the number who have formally been charged?  And what --

 

SEC. ENGLAND:  Formally?  I'm sorry --

 

STAFF:  That's the military commissions.

 

Q:  Oh, right.  Okay.  And what happens  -- where will the people that are convicted be detained?  Are they going -- they're not going to be detained on Guantanamo, or are they?

 

SEC. ENGLAND:  I guess I don't understand that --

 

STAFF:  He's addressing the military commissions -- the separate charges --

 

SEC. ENGLAND:  Separate -- military commissions.  This is again -- this is -- what we're doing -- these are hearings, strictly tribunals, to determine if a person is an enemy combatant.  So this is not -- don't confuse this with the --

 

Q:  Okay, I see.  Sorry -- (off mike).

 

SEC. ENGLAND:  Okay.  Yes, sir.

 

Q:  You said 95 percent had responded positively and said they wanted to meet with their personal representatives and appear at the tribunals.  Could you say how many might have expressed a wish to have a court appearance?  To exercise that right?  Was that raised?

 

SEC. ENGLAND:  I don't know.  I mean, I don't know what that number was or if anybody raised that.  The only data I have is that people said yes, they would like to -- they would like to have a personal representative, and when would this process start.  So it -- but it was --

 

Q:  Do you know if any of them said --

 

SEC. ENGLAND:  Pardon?

 

Q:  Do you know if any of them said that they --

 

SEC. ENGLAND:  No, I don't.

 

How about in the back here?

 

Q:  How do you expect to have a fair trial if some of the information that you'll be using against the detainees would be classified?  How will they deal with the response of that classified --

 

SEC. ENGLAND:  Well, it's not a trial, it's an administrative process, again, it's to look at facts.  This isn't a trial, this is looking at facts.  This is -- a tribunal makes this decision based on facts.  The detainee can also provide facts if they have facts to help in this determination.  So this is fact-based.  Detainee can provide whatever facts they can provide.  So fact based -- look at all the facts, weigh the facts; reasonable person, based on the preponderance of the data available.

 

Q:  Mr. Secretary, what is the practice by which information is considered classified?

 

SEC. ENGLAND:  I'm sorry, I can't hear you.

 

Q:  What is the criteria by which the information is classified?  Is an informer's testimony classified?  What is the criteria that is being used for what's classified and what's not in these files?

 

            SEC. ENGLAND:  I would expect it goes by our standard classification.  I haven't looked at any of the files, as I indicated last week.  But, you know, we have in the federal government various criteria for classified information, what's unclassified, different   levels of classification, whatever's been applied, I mean, we'll take that data.  It's already in certain jackets, it's already designated in terms of classification.  And that's already standard procedures across Department of Defense in terms of how you classify data, so I don't believe there's anything unique about this.

 

Q:  If the person is determined by the tribunal not to be an enemy combatant, what happens to them?

 

SEC. ENGLAND:  They go home.

 

Q:  Is the government admitting any culpability, liability, if -- in determining this person is not an enemy combatant who's been held for some amount of time?

 

SEC. ENGLAND:  You're asking the wrong person.  Again, I have -- my job is to make this determination, set out the process.  So, I guess we'll see -- depending on what the outcome is, I guess people would look at whatever their remedies are.  But that's -- mine is to determine enemy combatant or not.

 

Q:  Last quick question.  Is the idea that this will be decided immediately at the time of the tribunal?  Are they going to come back and make a number of -- you know, a large number of determinations at once, are they going to do each individual case?

SEC. ENGLAND:  No, I believe they'll do this individually, case by case.

 

Q:  If a detainee provides incriminating information to his personal representative or a translator, is there any requirement that the representative, the translator provide that information to the court?

 

SEC. ENGLAND:  What do you mean to the court?  To the --

 

Q:  Or excuse me, the tribunal.

 

SEC. ENGLAND:  Yes.  I mean, if the person says here's the information about me -- I mean, again, it's a fact-based determination, so a detainee can provide whatever facts he cares to or not care to.  But whatever data he makes available is available, it's a fact-based determination.  So hopefully he makes fair statements to the tribunal and the best decision is made.

 

Q:  If the detainee tells his personal representative, say, "Yeah, I made a car bomb," what is the representative's -- do they have any obligation with that information?

 

SEC. ENGLAND:  Sure, they'll -- I mean, if that's the information that's available, it will go to the tribunal.  I mean, the purpose of the tribunal is look at available data and make a fact-based determination.  So whatever the facts of the case are, I mean, it's pretty straightforward.

 

Q:  So we shouldn't presume any parallels to attorney-client privilege in a civilian setting?

 

SEC. ENGLAND:  No.  No.  Again, all data comes forward to be determined.  It's an administrative hearing.  Get all the very best data you can from each of the detainees, make the best decision you can based on all the data available.

 

Q:  Are the prisoners aware of that?

 

SEC. ENGLAND:  Yes.

 

Q:  Have any detainees at --

 

SEC. ENGLAND:  They will be.  I mean, when they work with their personal -- I don't know if they are yet, but they will be.  So --

 

Q:  When they work with their personal representative --

 

SEC. ENGLAND:  Sure.

 

Q:  -- they'll know that that person is not their advocate? (Chuckles.)

 

SEC. ENGLAND:  No, absolutely.

 

Q:  Okay.

 

SEC. ENGLAND:  No, it's not their advocate; it's merely to bring data forward.

 

Q:  Are those conversations going to be monitored?

 

SEC. ENGLAND:  Pardon me.  Pardon, right here?

 

Q:  Have any detainees at Guantanamo been excluded from this process?  And I ask because there was that report about a week about of some sort of an agreement to keep some detainees at Guantanamo or who are at Guantanamo off the rolls.

 

SEC. ENGLAND:  I know of no one who's excluded from the process.

 

(Off Mike):  We have time for about one or two more before we quit.

 

SEC. ENGLAND:  Yeah.  I would say we're just about finished.

 

Yeah?

 

Q:  In your opinion, sir, how does this tribunal system satisfy the Supreme Court ruling?

 

SEC. ENGLAND:  Well, I don't know if it does or not.  Again, you're getting in an area that's not my determination.  As I said before, we will do the tribunals.  They will be fair.  They will be open.  They'll be fact-based.  I mean, what we will do is come to the very best decision that we can do, and we'll do that -- first criteria is to do it fairly and accurately and document it and make sure we have qualified people.  And the second criteria is to do it as quickly as we can because it is important, obviously, to the people being detained.  So our -- but that's our criteria, right?  Make sure we do it fairly, accurately, document it, do it as openly as we possibly can and also do it quickly.

 

Maybe one more, somebody I haven't answered.  Yes, sir?

 

Q:  The 5 or 10 percent who balked, the detainees who balked, what's going to happen to them?  Will they be provided a representative anyway, or --

 

SEC. ENGLAND:  Well, they have the right to a representative.  So we make it available, but they do not have to have a representative. So if they care not to, they don't have to appear.  It's up to the detainee.  They have the right to appear.  They have a right to a personal representative.  But they also have a right not to appear. So it's their decision, and we'll know that in each case because we will have someone working with each of the -- you know, with each of the detainees.

 

Okay, now, the plan is I won't get with you next week, but I will get with you early the following week.  In the meantime, when we -- when the procedures are available we will get you a copy of the procedure.  As they become available we'll get those to you.  They'll be signed off by myself, so you will get those just as soon as we get them.  And obviously that's got to happen before the first hearing, so sometime early next week you should be getting those.

 

We should be -- hopefully we will have the first tribunal next week and we'll be able to tell you more about it when we get back right after that.  So in about a week -- a little more than week, beginning of the following week, we'll get back together and be able to give you another status report.  But in the meantime, whatever data happens, is available, we will make available to you.  Okay?

 

And I thank you very much.

 

Thank you.

 

SEC. ENGLAND:  Thank you.

 

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