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Announcements of Key Personnel for Military Commissions; Issuance of Military Commission Instruction No. 9 on Military Commissions Review Panel

Presenter: Senior Defense Officials
December 30, 2003 1:35 PM EDT
SR. DEFENSE OFFICIAL:  Good afternoon, ladies and gentlemen.  I'm pleased to be here today to announce the selection of key personnel associated with military commissions, as well as the issuance of Military Commission Instruction No. 9 on the review panel for military commissions.  The key personnel I'll be announcing today are a new appointing authority, the legal advisor to the appointing authority, and the review panel members.

 

            We've made great progress over the last several months in establishing a process that provides full and fair trials while protecting national security.  On July 3rd, 2003, the president determined that six enemy combatants currently detained by the United States are subject to his military order of November 13th, 2001.  More recently, as I believe most of you know, two detainees have recently received defense counsel.  Although no military commissions have yet been scheduled, we are working diligently to set up a full and fair military commission process.

 

            This is the first time since World War II that the U.S. has used military commissions.  While it's important for us to move quickly, we've been taking the time necessary to do things correctly.  Today's announcement of a new appointing authority, legal advisor to the appointing authority, review panel members, and a new military commission instruction on the review panel process is another important step.

 

            First of all, I'm pleased to announce that the secretary of Defense has decided to select John D. Altenburg Jr. to serve as the appointing authority.  John Altenburg retired from the United States Army as a major general in 2002.  His last military assignment was as the assistant judge advocate general for the Department of the Army. He brings with him a wealth of legal and military experience that will greatly serve his nation in this role.

 

            The position of appointing authority was previously held by Deputy Secretary of Defense Paul Wolfowitz.  The deputy secretary has been working closely with our office to set in place the staffing and regulations that have enabled us to progress to this point.

 

            Secondly, I would like to announce that Air Force Brigadier General Thomas L. Hemingway has been named legal advisor to the appointing authority. The legal advisor supervises the appointing authority legal staff and advises the appointing authority on the approval of charges and referral of cases to trial, questions that arise during trial, and other legal matters concerning military commissions.

 

            General Hemingway retired in 1996 and was recalled to active duty in August of 2003 to serve in this role.  And we thought it appropriate to announce his selection at this time along with the announcement of other key personnel.  General Hemingway has served as a staff judge advocate at the wing, numbered Air Force, major command and unified command level.  From those roles, he brings great experience in advising senior military leaders on military justice issues.  He also served as a senior judge on the Air Force Court of Military Review and as director of the U.S. Air Force Judiciary.

 

            Next I would like to announce the members selected to be designated for service on the military review panel -- Military Commission Review Panel.  First, Judge Griffin Bell, who is a former judge of the U.S. Court of Appeals for the 5th Circuit and former U.S. attorney general under President Carter.  Second, Judge Edward Biester, who is a judge of the Court of Common Pleas of Bucks County, Pennsylvania.  And he is a former Pennsylvania attorney general and a former member of the U.S. House of Representatives.  Third, the Honorable William T. Coleman Jr., who is a former secretary of Transportation.  And Chief Justice Frank Williams, who is chief justice of the Rhode Island Supreme Court.

 

            The distinguished careers, wealth of experience and diversity of backgrounds of these review panel members speak for themselves.  The press office can provide you with their bios.

 

            We are also releasing today Military Commission Instruction No. 9, which lays out the procedures the review panel will follow in hearing appeals from military commission decisions.  Under this instruction, review panel members are responsible for reviewing the military commission proceedings.  The review panel may consider written and oral arguments by the defense, the prosecution and the government of the nation of which the accused is a citizen.   If the review panel finds that a material error of law has occurred, the review panel will return the case for further proceedings, which may include dismissal of charges.

 

            The review panel may also make recommendations to the secretary of Defense with respect to the disposition of the case before it, including with respect to sentencing matters.  Except as necessary to safeguard protected information, written opinions of the review panel will be published.

 

            The review panel members will be commissioned as major generals in the United States Army during their intermittent service in this role.

 

            Thank you for your attention.  We'd be happy to take your questions.

 

            Yes?

 

            Q     Lots of questions.  Could you just sort of go through the steps, just to remind us where all these different people fit in and what each group is going to do?  And can you also tell us how the decision last week in the Gherebi case, in the 9th circuit, is affecting the work that you all are doing?

 

            SR. DEFENSE OFFICIAL:  Certainly.  With respect to how the various people I've been discussing fit into the military commission process, the appointing authority is the person who supervises the military commission process.  He appoints the military commission members that -- hence the name "appointing authority" -- and he makes sure that the prosecution and defense have the resources necessary to carry out their duties.  He approves charges against individual detainees.  He approves plea agreements.  And he makes sure the process runs properly.

 

            (To colleague.)  Would you like to add anything to that description of the appointing authority's role?

 

            SR. DEFENSE OFFICIAL:  No, I think that's pretty complete.

 

            SR. DEFENSE OFFICIAL:  The review panel serves as the court of appeals for the military commission process.  And so once a military commission, which is like a trial court, hears a case and decides the case, the cases will then be appealed to the review panel, which will issue an opinion on the case before it.

 

            Q     In that regard, is it…….

 

            SR. DEFENSE OFFICIAL:  Let me finish the second part of the question, and then I can get into other questions.

 

            With respect to the 9th Circuit decision in the Gherebi case, that's a question that's best presented to the Department of Justice. And we're working closely with them in responding to that.  But that will not have an immediate impact on the military commission process.

 

            Sir, your question on the --

 

            Q     The appeal -- is it an automatic appeal to the review panel, or does it have to be something originated by the defense counsel?

 

            SR. DEFENSE OFFICIAL:  It's an automatic appeal.

 

            Q     And it's binding?  The review -- the appeal's findings are binding?

 

            SR. DEFENSE OFFICIAL:  The decisions of the review panel -- is that your question?

 

            Q     Yes.

 

            SR. DEFENSE OFFICIAL:  The opinions of the review panel, when the review panel sends a case back down for further proceedings or for dismissal of charges, those are binding.  However, if the review panel says, "Yes, we believe the trial was conducted appropriately," and forwards a recommendation to the secretary of Defense, that is just a recommendation.  It's not necessarily binding on the secretary.

 

            Q     And then the secretary does what?

 

            SR. DEFENSE OFFICIAL:  Then the secretary or the president will make a final decision on the case.  However, no finding of guilty -- no finding of "not guilty" may be changed to a finding of guilt.

 

            Q     Sir, are there additional organizational or procedural steps of this type that you announced today that need to be taken before the first commission is actually activated, the first person is tried?

 

            SR. DEFENSE OFFICIAL:  (To other briefer)  Would you like to address that question?

 

            SR. DEFENSE OFFICIAL:  Sure.  There will be an additional instruction that I think will have a modification to one of the existing instructions.  But we hope to have those completed very soon.

 

            Q     But what does the additional instruction refer to?

 

            SR. DEFENSE OFFICIAL:  Well, it's still a work in progress, so I'd rather not comment on it.

 

            Q     Just the general subject, you can't tell us?

 

            SR. DEFENSE OFFICIAL:  I'd rather not comment on it.

 

            Q     Why was it necessary to replace Mr. Wolfowitz with Mr. Altenburg?

 

            SR. DEFENSE OFFICIAL:  Well, there was never any intention that the deputy secretary of Defense would serve in the appointing authority role on a permanent basis.  The deputy served in that role at the point in time when he was helping us to get a number of the building blocks together for military commissions, including the things that we're announcing today -- the review panel, the review panel membership, and the initial determinations by the president that were made back in July.  Now the military commission process needs to be managed on a day-to-day basis by someone like John Altenburg, who can devote his full attention to the matter.

 

            Q     As you gentlemen know, several human rights groups and legal activist groups have questioned the legitimacy of the commissions based on their reading of the rules announced to date. What's your response to their questioning of the legitimacy of this process?  And do any of the steps announced today, do you think they may allay some of the concerns?

 

            SR. DEFENSE OFFICIAL:  (To other briefer)  Would you address that first?  And then I have a few more things to say.

 

            SR. DEFENSE OFFICIAL:  Sure.  In the first place, I think that the process that has been set up is a process that provides for a full and a fair hearing.  And I think a fair reading of our rules also shows that we are in compliance with international norms.  I appreciate their point of view, but I'm satisfied that we are, and that the process that we have is going to be completely fair.  And I think that what we are doing here today is another step in demonstrating that it's going to be a complete, fair, open process.

 

            SR. DEFENSE OFFICIAL:  Some of the criticism relates to the review process or the appeals process.  And by announcing the review panel members, with their great experience and varying backgrounds at the trial level, the appellate level, and also announcing the review panel instruction which lays out the binding nature, in part, as we already discussed, of the review panel decisions, I think that should go a long way to allaying the criticism that's been made so far.

 

            SR. DEFENSE OFFICIAL:  Yeah.  In looking at the criticisms and the comments that were provided at the initiation of this process, they were looking for people who could review it who had distinguished legal careers.  And I think that this responds to that suggestion. They were looking for a manifestation of independence.  I think the fixed term limits provide exactly that.  They're not beholden to the president to provide a particular decision in order to retain their job; they have a fixed term.  And I think all of these respond to the suggestions that we got at the commencement of all of this.

 

            Q     Can I just follow up?  How long is the term?

 

            SR. DEFENSE OFFICIAL:  Two years.

 

            Q     Can I just follow up?  Is there any thought of providing some kind of a mechanism to allow for the civilian federal courts to review this process at some point along the way?

 

            SR. DEFENSE OFFICIAL:  Not to my knowledge.

 

            Q     Do you see any value in having that happen?

 

            SR. DEFENSE OFFICIAL:  I think that what we have right now is a complete, fair, stand-alone procedure.

 

            Q     Who chose the review panel members?

 

            SR. DEFENSE OFFICIAL:  The secretary of Defense.

 

            Q     It sounds like with this step that you're very close to being ready to begin.  Could you look forward a bit and tell us what sort of schedule you expect down the road, when we might see the first trials beginning and how many you're anticipating having over the next couple of years?

 

            SR. DEFENSE OFFICIAL:  Well, this announcement, you're correct, is a necessary step to beginning military commissions, but it doesn't foreshadow any particular timing on the start of military commissions.

 

            Q     What additional steps would need to be taken before you'd be comfortable initiating a commission?

 

            SR. DEFENSE OFFICIAL:  I believe (the other briefer) already discussed the next steps that will need to be taken.

 

            Q     Are those the only steps, by the way, or just examples of steps?

 

            SR. DEFENSE OFFICIAL:  Well, I mean, obviously, there are numerous logistical steps that we'd have to -- you know, that would have to take place.

 

            Q     Like?

 

            SR. DEFENSE OFFICIAL:  Well, just, you know, having lawyers go to Guantanamo Bay, for instance, and arranging for meetings, and then arranging for discovery -- all the sort of things that normally happen before a trial begins.

 

            Q     So looking for the lead here, is this the last major step before military commissions get underway?

 

            SR. DEFENSE OFFICIAL:  Well, I wouldn't say it's the last major step because I would consider charging somebody to be a major step, and we are not doing that today.  So --

 

            Q     Is that the next step, though, charging people?

 

            SR. DEFENSE OFFICIAL:  There would, obviously, be other things. Well, as you know, we've already provided counsel in two cases.  And the next -- from -- I suspect from your point of view, from the media point of view, the next major step would indeed be charging.

 

            Q     Is that done by the appointing authority?

 

            SR. DEFENSE OFFICIAL:  That is done by the appointing authority who prefers the charges and -- well, the prosecutor, of course, brings the charges to the appointing authority.  The appointing authority has to make a decision of whether or not those are charges that warrant being referred to trial.  And then, after that, the appointing authority would select the commission members and refer the case to trial.  And once that happens, I think what you will see is the normal motion practice and discovery practice that precedes any legal process.

 

            Q     Is it a matter of days, weeks or months before charges may be brought?

 

            SR. DEFENSE OFFICIAL:  I'm not going to speculate on that date.

 

            Q     The review judges, I take it they're all civilians that will be named officers for the two-year term period; is that right?

 

            SR. DEFENSE OFFICIAL:  That's correct.

 

            Q     And they were civilians -- that's on purpose to add to the respectability of the court, that it's not controlled from the top down by military folks who might have an interest in a certain outcome of the cases?

 

            SR. DEFENSE OFFICIAL:  Yeah, I believe the backgrounds of the four review panel members that we announced today, including the fact that they are civilians, does add to the independence of the review panel process.  And I do want to point out that there may be additional -- a few more review panel members announced in the future.

 

            SR. DEFENSE OFFICIAL:  But it's not correct to say that it was done on purpose to do what you said; it was done because they are highly qualified individuals who will serve well as review panel members, and it doesn't preclude different profiles if we do add additional members to the review panel.

 

            Q     Are they still active judges or are these all retired?

 

            SR. DEFENSE OFFICIAL:  Chief Justice Williams is currently the chief justice of Rhode Island, so he is an active judge.  Judge Biester is also currently serving in the Pennsylvania court system.

 

            Q     Are these paid positions?

 

            SR. DEFENSE OFFICIAL:  They will receive military pay for the time in which they are serving in this capacity.  It's kind of -- you can analogize it to a Reservist's call to active duty for certain periods of time.

 

            Q     Do these people --

 

            SR. DEFENSE OFFICIAL:  Sir, we've got some other folks who haven't gotten a chance.

 

            You, sir.

 

            Q     What is the voting process in the review court?  Unanimous? Majority?  How is that going to work?

 

            SR. DEFENSE OFFICIAL:  It's --

 

            Q     I mean, in a regular appeals court, it's majority rules.

 

            SR. DEFENSE OFFICIAL:  That's -- and that's correct.  And that's the way it works in the review panel.

 

            Q     In commissioning them as major generals, is there a precedent for that?  Was this what was done in World War II with the commissions?  And what's the reasoning, the thinking behind making them military officers?

 

            SR. DEFENSE OFFICIAL:  The -- I'm not aware that there's a precedent for using this authority.

 

            The reason, though, that we have made them military officers is that the military commission process is designed to be within the military.  This is the first time we've ever had a court of appeals, if you will, for the military commission.  When military commissions were last held, after World War II, there was no review panel or court of appeals, what have you.  This is the first time we've ever done that, and so we wanted to preserve the military nature of the decision-making process.

 

            Q     There is a military court of appeals right downtown.  That has civilian judges.  Why are you not using that court?  And why create a new system when there is an existing military appeals process?

 

            SR. DEFENSE OFFICIAL:  Well, the Military Court of Appeals has jurisdiction over the Uniform Code of Military Justice offenses, and their jurisdiction is set by statute.

 

            Q     And this is outside the UCMJ is what you're saying; it's an entirely sort of free-standing new military justice --

 

            SR. DEFENSE OFFICIAL:  It is separate, although it is authorized within what is called the UCMJ.

 

            Yes?

 

            Q     Could you just -- big picture -- remind us again why it is the Defense Department sees the need to create this special court for these cases, instead of going through the existing structures?

 

            SR. DEFENSE OFFICIAL:  Before you start the answer, let's start where it started.  The president --

 

            Q     Right.  Okay --

 

            SR. DEFENSE OFFICIAL:  -- determined, through the military commission -- the military order, that this was the way --

 

            Q     Right.

 

            SR. DEFENSE OFFICIAL:  -- he wanted another choice. 

 

            Q     Just remind me the why -- because I think it gets very mixed up, with all the voices --

 

            SR. DEFENSE OFFICIAL:  It's important -- it's not the Defense Department that decided this.  The president decided this.  And in the context of the president's decision, we've gone through developing process to execute that decision.

 

            Q     Somebody did brief him on this before he made this decision? (Laughter.)

 

            SR. DEFENSE OFFICIAL:  This was made by the president.

 

            Q     Yes, but somebody briefed him on here's how such thing would work.

 

            Q     No, he made it up.

 

            SR. DEFENSE OFFICIAL:  It would be best not to speculate how the president decided --

 

            Q     (Laugher.)

 

            SR. DEFENSE OFFICIAL:  It’s my view that there is no existing international tribunal that has jurisdiction over these cases.  And so it was necessary to create one.

 

            SR. DEFENSE OFFICIAL:  I would add that, you know, some of the other reasons for having the military commission process include the tradition of using military commissions in similar circumstances in World War II, the need to protect classified information and the people involved in the proceedings from harm by terrorist attacks.  And also the, you know, desire to show that the United States can handle the terrorist attacks in a fair way, in a way that comports with international standards of justice.

 

            Q     What are the other points of departure from the World War II military commission process here?

 

            SR. DEFENSE OFFICIAL:  Well, you know, if you look at our rules and procedures, they are designed, you know, to provide the full and fair trial of the individual.  There's the presumption of innocence. There's no adverse inference from remaining silent, which I think you would find was different in some of the World War II commissions. They have the right to call witnesses.  They have the right to cross- examine.  So there are a number of procedures here that I think comport with what we consider to be appropriate judicial processes today.

 

            Q     They were not present in the World War II system?

 

            SR. DEFENSE OFFICIAL:  Some of these were not present in the World War II proceedings.  Now, bear in mind that there were a number of different commissions during World War II and not all of them had precisely the same rules.  And in addition, as has already been mentioned, we've set up a very detailed review process that was non- existent before, and we've selected very, very distinguished jurists to fill that capacity.

 

            STAFF:   We have time for one more -- (off mike).

 

            Q     If I could get you to clarify.  The review panel, was that a part of the original orders and you've just come out in detail today, or is this an entirely new thing that you've come up with?

 

            SR. DEFENSE OFFICIAL:  The review panel process was described in the secretary of Defense's military commission order that he issued in March of 2002.  So this has been part of the plan all along and these are just additional details to flesh out the structure.

 

            Q     So you haven't actually changed anything from the initial plan, it's just simply for the specifics?  There's nothing different in what you're announcing today that wasn't always planned for?

 

            SR. DEFENSE OFFICIAL:  I think that's correct.

 

            Q     Do you have something that has all of the names and backgrounds?

 

            SR. DEFENSE OFFICIAL:  We've got some fact sheets.

 

            Q     Can I ask you one quick clarification?  Did you say there's going to be possibly more added to the review panel?

 

            SR. DEFENSE OFFICIAL:  There may be one or two more.

 

            Q     Okay, but there's no set number?

 

            Q     You've got four now, right?

 

            SR. DEFENSE OFFICIAL:  That's right.

 

            Q     So a majority would be a problem?

 

            SR. DEFENSE OFFICIAL:  What's that?

 

            Q     So you'd have to have more --

 

            SR. DEFENSE OFFICIAL:  Well, let me clarify -- let me clarify one thing, actually, that's a good point.  The review panel -- there's review panels that each sit with three members that decide a particular case.  However, there are review panel members that can, you know, number up to -- there's no set limit, but I don't think it will be more than about a half dozen.  And they will be designated by themselves to sit on a particular case.  So you narrow it down to three in each case.

 

            Q     Sir, I apologize for coming in late.  Maybe you already answered this.  But because you're naming these people by name and they are prominent, well-known Americans, are you going to be providing them with physical security during their term of office and after that, against a potential terrorist threat because you have now named them by name?

 

            SR. DEFENSE OFFICIAL:  I don't want to address that right now.

 

            Q     You say right now; will you be addressing it in the future?

 

            SR. DEFENSE OFFICIAL:  We just don't have anything to say on it right now.

 

            Q     Thank you. 

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