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Defense Department Special Briefing on Military Commissions

Presenter: Legal Advisor for Military Commissions Brig. Gen. Thomas L. Hemingway
July 19, 2005 10:30 AM EDT
Defense Department Special Briefing on Military Commissions

To view the slides used in this briefing click here.

 

            BRYAN WHITMAN (Pentagon spokesman):  Well, good morning, and thank you for joining us today.  With the recent decision by the Federal Court of Appeals to allow military commissions to resume for enemy combatants at Guantanamo Bay, we thought it would be helpful to talk to you a little bit about the way ahead and the process.  It was almost a year ago, back in August of 2004, when we got together and talked about the military commission process.  Since then, we have been making an awful lot of information available, to anyone who's interested in looking at it, on the Defense Department website about military commissions, where you can find a wide variety of fact sheets, the directives and orders that govern military commissions. And I would encourage you to go back and review that site for additional information that goes beyond this briefing.   

 

            But today we're fortunate to have the legal adviser to the appointing authority for the Office of Military Commissions, who's Air Force Brigadier General Thomas Hemingway.  Many of you know General Hemingway.  He's been working in the military commissions process for quite some time now, and he's agreed to come and give us an overview, basically, update us on some of the case statuses, and to kind of talk to you about the way ahead in light of some of the recent decisions that have been made.  

 

            There will be some, obviously, details that will have to be worked out in the days ahead.  And as we have additional information with respect to how your news organizations and how you may be afforded the opportunity to cover military commissions, we're going to start to engage with your bureau chiefs on that particular topic. 

 

            And with that, I won't waste any more time.  I'll let General Hemingway take you through a brief overview and then open it up for some questions. 

 

            GEN. HEMINGWAY:  Thank you. 

 

            Michael, if you would, next slide. 

 

            Good morning.  I just, as Mr. Whitman said, would like to go over some of the processes that we're faced with now that it appears that we will be moving forward, and we intend to move forward quickly.   

 

            I'd like to identify for some of those of you who are not familiar with the commission process some of the procedures that are incumbent in the military commission process and let you know some of the things that we're going to be doing ahead. 

 

            As you know, we have 12 detainees who have already been designated by the president in accordance with the reason to believe determination.  There are four detainees who have had charges approved and referred to trial by military commission.  Eight detainees are yet to be charged.  I received yesterday, from the Office of the Chief Prosecutor, proposed charges on three more.  It will take me -- given the volume of information supporting those charges -- some time to work through that before I forward it with recommendations to the appointing authority for a decision as to whether or not those charges should be referred to trial. 

 

            As you know, the four cases involving charges have been held in abeyance since December of 2004 as a result of the restraining order in the Hamdan case.  It's my understanding that in working with the Justice Department on the restraining orders we will move forward on each individual case as we get the appropriate coordination and clearance from the Department of Justice.  The court stay in Hamdan has yet to be lifted. 

 

            Next slide. 

 

            And we need to appoint members to the commissions in the al Bahlul and al Qosi cases. 

 

            As you know, the review panel members have been selected. Sometime in the future I suspect that the secretary will want to appoint additional members, but to my knowledge there are no individual names in consideration at this time.  Hearing dates have yet to be determined.  Once the appointing authority removes his orders of abeyance on these proceedings, it will be up to the presiding officer in each case to schedule hearing dates in coordination with counsel. 

 

            Next. 

 

            For those of you who have been down to Guantanamo during the course of these proceedings, these are some of the types of motions that have been raised to date.  I'm quite certain that there will be additional motions that will be considered by the presiding officer and the commission members before the issues are joined. 

 

            Of course, once there is a ruling, the commission will issue findings and make announcements.  And, of course, there will be interlocutory questions that will come up from time to time.  Some of those may be referred to the appointing authority for ultimate decision. 

 

            Next slide. 

 

            As far as the length of time is concerned, fully litigated cases -- as I'm sure those of you who cover other litigation -- can be lengthy.  As they were in August through December of 2004, the proceedings can run to eight to 10 hours a day.  As far as guilty plea cases -- again, those are, from my point of view, speculative.  Any accused can, of course, initiate negotiations. 

 

            To my knowledge, there are no negotiations at this point ongoing, as far as any proposed guilty plea is concerned.  And if we were to get to a guilty plea case, as you might imagine, those cases don't take quite as long to resolve.  But as we speak today, I am unaware of any detainee with any plans to enter into pretrial negotiations. 

 

            Next slide. 

 

            As far as those factors that are unknown at this point.  Of course, we don't know what appeals defense counsel may be launching. We don't know exactly when a presiding officer may declare recesses in commission proceedings.  And of course, there are existing motions in each case that have yet to be resolved by the presiding officer and the commission members.  The action on those stopped when the appointing authority asked that everything be held in abeyance. 

 

            Next slide. 

 

            As far as trial is concerned, government cases will, according to the chief prosecutor, average probably 10 to 20 witnesses.  I have no way of knowing how many witnesses defense will call at this point. 

 

            There will be motions and objections, as you have already seen, that are typical of any kind of criminal litigation. 

 

            Interlocutory questions under our process can be referred to the appointing authority, when appropriate, for resolution.  And of course that adds some time to the process. 

 

            If there is a finding of guilty, then we would have a sentencing proceeding.  And again, the prosecution and the defense would have the opportunity to present evidence on the issue of what the appropriate sentence is for any particular detainee who has been found guilty. 

 

            As far as staffing is concerned, in a courtroom you'll see appointing authority staff in there.  The Office of the Chief Prosecutor will have people who are at the bar, representing the government, and there may be also prosecution personnel observing. And of course you've got the same on the defense side.  And several of the detainees, in addition to military defense counsel appointed to represent them, have civilian counsel as part of the defense team. 

 

            The commission panel is in there.  And as far as court support is concerned, you have court reporters, bailiffs, translators, physical security, IT support.  And in IT support, I include those people who run the closed-circuit monitoring that provides the view of the courtroom to the media in the remote media facility.  There will be some witnesses and their escorts, victims and their escorts. 

 

            In addition, some of the detainees have requested permission for family members to attend the proceedings, and we've authorized up to two family members.  You'll have escorts for them; if necessary, translators.  And there will be security there for them. 

 

            The accused is entitled, of course, to have diplomatic representatives of their country observe the proceedings.  There may be additional observers from the United States government, and nongovernmental organizations have attended the past proceedings and will in the future. 

 

            And of course we have room set aside in the courtroom proper for media, and then we have a remote facility with a live feed that is available.  And I think that holds up to 90 members of the media.   

 

            As far as the procedures are concerned, prosecution of course, presents its case, both sides go through motions and any objections raised by the defense.  Evidence is presented by the prosecution and the defense, as you would find in any criminal proceeding.  And then the panel members will be allowed to deliberate as long as they need to to arrive at any decision.

 

The commission is “open”, “open with delay” or “closed.”  Now, when I say "open," there is a, obviously, live feed on all of the monitors in the commission room.  But there is a time delay on the feed to the remote media facility.  I think the past it was about five minutes.  That can be lengthened or shortened, depending on the concerns that the security people have at any given time about the potential for the disclosure of classified information.  But “open with delay” applies only to the remote facility. 

 

            “Closed” sessions will occur only when necessary to protect national security information. 

 

            During brief recesses or presentation of classified evidence, of course observers will have to leave the courtroom.  And there's no need to close the courtroom during the consideration of unclassified evidence.  The chief prosecutor I think, intends to present the cases, to the extent they're able, in an open session, making the entire process as open and transparent as we possibly can.  To that end, as you know, if you've looked at the website, we've put transcripts, contents of motions and rulings up on the website as fast as we're able to.   

 

            Commissions, from our point of view, provide for a full and fair hearing that takes into account our national security interests.  And, of course, our goal would be to have everyone who has observed them in the final analysis agree with our view that the process does provide for a full and fair proceeding.   

 

            As Mr. Whitman said at the beginning of the briefing, we have a website where you can check all of this, and that's available for you if any of you haven't already looked at it. 

 

            With that, I am open to questions. 

 

            Sir? 

 

            Q     General, what's the earliest possible resumption that you can envision?  Are we talking days or weeks or months in the first case that's going to be resumed?  And on the issue of fair trials, as you know, many in the human rights community have said that they view the process as rigged for convictions, and some have called it a kangaroo court.  Can you respond to those as well? 

 

            GEN. HEMINGWAY:  Certainly.  First, as far as timing's concerned, much depends on when the Department of Justice will be able to have the mandate of the court issued and remove the stay.  But once we do that, I think we could be in hearings, active hearings, in 30 to 45 days. 

 

            Now, as far as the comments of those who would criticize the procedures and commissions as a whole, I think -- as has clearly been stated by the Circuit Court of Appeals for the District of Columbia -- the president has the constitutional authority to convene military commissions. 

 

            If you make a fair comparison with our rules and procedures, they compare favorably to the rules and procedures of the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, and for my point of view, also the International Criminal Court. 

 

            In some respects, they are more faithful to our understanding of what is fair.  In the international tribunals, the prosecution can appeal a not-guilty verdict and have it overturned.  That is not the case in these proceedings.  Any not-guilty verdict stands. 

 

            In the international tribunals the prosecution can -- and for that matter, has -- appealed sentences to have them increased.  That can't be done in this process.  So there are many areas in which we compare favorably, and some, I would submit, are fairer.  So as far as the procedures are concerned, I think a fair analysis is that we provide for a full and fair trial.  Now, we do, of course, have national security concerns.  One of the things, I think that bears repeating is we are conducting these proceedings during an ongoing conflict.  The ad hoc international tribunals all were initiated after the end of a conflict.  The major World War II military commissions all were conducted at the end of the conflict.  When the enemy has been vanquished you don't have the same national security concerns that you have when you are conducting them during an ongoing conflict.  But I believe a fair analysis of our procedures will lead one to believe that these are full and fair proceedings. 

 

            Yes, sir. 

 

            Q     General, I think some of the criticism of the procedure had more to do with evidence and ways that the accused can contest it because some of it's classified.  They don't have clearances; they couldn't hear it.  There were also problems last August with translations being accurate, and concerns were raised that some members of the commission were not legally trained.  How are those issues being addressed? 

 

            GEN. HEMINGWAY:  Well, I think we've addressed all of them.  As far as translators are concerned, I think with the modification of the contract, we've addressed those concerns.  We did not have those issues arise again in December.  Many of the issues that were raised in terms of translators last year, in 2004, had to do with processes other than military commissions.  But we did modify our contract so that we are certain now that we will get conference-qualified translators.  We use the same standard in our contract that's used by the United Nations for what is commonly called simultaneous translation, but in the translating business it's called -- they're called conference translators. 

 

            As far as the evidence is concerned, to my knowledge there is an active discovery process ongoing, and the Office of the Chief Prosecutor has been working diligently to see to it that defense counsel are provided all of the appropriate information -- classified or unclassified.  And I can't address any specifics until I'm faced with the issue in a given case. 

 

            Q     Well, what about the general issue of defendants not being able to hear some of the evidence against them because it's classified?   

 

            GEN. HEMINGWAY:  Well, I haven't seen a situation where that's presented yet.  The rules provide for that, but until I see a case where that becomes an issue, I wouldn't particularly want to comment on it.  As I told you just a few seconds ago, we do have security concerns, given the timing of these, that you wouldn't otherwise have. 

 

            Q     Sir, what preparations are being made for the eventual sentencing phase?  Presumably you have to prepare for the eventuality of executing someone or incarcerating someone indefinitely.  What preparations are being made for that phase? 

 

            GEN. HEMINGWAY:  I think we have facilities at Guantanamo Bay that are appropriate for long-term confinement.  I've not made any preparations, and I'm unaware of any preparations for a capital case.   

 

            To date, I haven't reviewed the evidence of any case that would lead me to recommend that it be capital.  That doesn't mean that I won't see one in the future, but I haven't seen one yet.  If such a case were to be tried, I'm certain that the procedures would be consistent with our processes in the military. 

 

            Q     When the commissions resume, do you start where you left off, or do you start from the very beginning?  And if it's the former, can you give us an update of where things ended with the four where charges were approved? 

 

            GEN. HEMINGWAY:  Well, as far as al Qosi and al Bahlul are concerned, those will start from the beginning.  As far as Hicks and Hamdan are concerned, there are unresolved motions and issues that will have to be ruled on before the issues are joined. 

 

            Now, when I talked about "issues are joined," I'm referring to the presentation of issues -- or evidence on guilt or innocence. Right now these are preliminary issues to be resolved before we get to that point.  Once those are all worked through, then, of course, you get presentation of evidence on the guilt or innocence. 

 

            Q     Sir, when the panels convened in the past, it's generally been to hear to motions, and then they'll hear motions in one case one day, in another case the next day.  Is that generally -- is that likely to be the way it continues, at least until the motions are -- 

 

            GEN. HEMINGWAY:  That's likely to be the way it will continue, not unlike any other criminal proceeding. 

 

            You had a question here.   

 

            Q     Yes.  The statement put out yesterday by the Pentagon said that the Defense Department and Justice Department were consulting on whether to ask the Appeals Court, I guess, to issue its mandate immediately.  And I was wondering if you've decided to do that, as opposed to consulting among yourselves, and what the process is for -- you know, for accelerating that process and how that works. 

 

            GEN. HEMINGWAY:  That's entirely in the hands of the Department of Justice. 

 

            At the time that I came down here for this briefing, I'm unaware of any final decisions that have been made in that regard, as far as the timing is concerned. 

 

            Q     And -- but it would be the appeals court that would have to decide whether to issue that mandate immediately? 

 

            GEN. HEMINGWAY:  That's correct.  That's correct. 

 

            Q     And if the defense asked for a rehearing or a -- or appeal it, you know, to the Supreme Court, would that delay it? 

 

            GEN. HEMINGWAY:  If a stay were entered, it would.  Otherwise, to my knowledge, it would not. 

 

            Q     General, has the issue of who is going to represent al Bahlul and al Qosi -- has that been resolved?  And if so, how?  And also, are you able today to tell us who's going to be the new chief prosecutor and the new chief defense lawyer? 

 

            GEN. HEMINGWAY:  Well, the -- I haven't seen appointment of counsel in al Bahlul. 

 

            As far as al Qosi is concerned, the last I was informed, Colonel Shaffer was still assigned to the case.  I don't know if there will be additional or substitute counsel there.   

 

            I don't have a name for you today, but I will this week on the successor in the Office of the Chief Prosecutor.  The chief defense counsel-select is Lieutenant Colonel -- Colonel-select Dwight Sullivan.  I'm sorry I don't have a bio for you right now, but we can provide that to you later. 

 

            Q     What service? 

 

            GEN. HEMINGWAY:  Marine Corps.  United States Marine Corps.   

 

            Q     Sir, did I hear you say that none of these 12 cases are eligible for the death penalty? 

 

            GEN. HEMINGWAY:  Well, I haven't seen any evidence that would lead me to believe that I would want to make that recommendation.  And of the four that have already been referred, of course, they've been referred as non-capital. 

 

            Q     General, you had mentioned civilian attorney involvement. Can you tell us what extent -- to what extent they're involved in this military commission process? 

 

            GEN. HEMINGWAY:  As much as any other defense counsel is. They've been quite active not only in the commission process but, as you have seen, in the habeas process also.  They've been very active not only in the commission courtroom but also in the habeas.  So it's been virtually indistinguishable, I think, from a civilian proceeding, in that regard. 

 

            MR. WHITMAN:  Sir. 

 

            Q     Sir, can you give us any of the size and scope of your operation?  How many people you have working on these commissions, what your budget is? 

 

            GEN. HEMINGWAY:  I can't talk to budget; that's handled by an office within Department of Defense.  As far as total number of people within the Office of Military Commissions, currently we have an authorization of 40 people.  We have been authorized within the last week to increase that to 65.  For -- now, that includes the Office of the Chief Prosecutor, the Office of the Defense Counsel, my office, the Office of the Legal Advisor and the Office of the Appointing Authority.  In terms of division of labor, the Office of the Appointing Authority is the smallest, and then of course I have a staff that supports me. 

 

            As far as defense counsel is concerned, it is my understanding that their plan in the future is to assign defense counsel on an individual case basis, rather than maintaining a large office of defense counsel on a standby basis.  The services have nominated people who will be available to be assigned on a case-by-case basis, rather than have 10 or 20 defense counsel sitting, waiting.  As we need them, we will assign them.  That's much the way that it's done in regular military criminal practice. 

 

            Q     You're just -- (inaudible) -- legal staff when you talk about 65, not escorts and security and all that stuff. 

 

            GEN. HEMINGWAY:  No.  The escorts and security are provided by the Joint Task Force down at Guantanamo.  That all comes under United States Southern Command. 

 

            MR. WHITMAN:  Time for about one more.  

 

            Q     Prime Minister Howard yesterday said he was satisfied with some of the changes made, referring to the Australian detainee David Hicks.  Do you know what specifically he was referring to about those changes? 

 

            GEN. HEMINGWAY:  I can't answer that question.  You'd have to ask the Australians.  But I can tell you that they have been very cooperative and supportive allies in the whole process.   

 

            Q     Can you say what changes have been made regarding the Hicks case? 

 

            GEN. HEMINGWAY:  Well, I think that we made changes to the process early on.  As you know, there were changes in a number of the directives concerning counsel.  We've provided for Mr. Hicks to have foreign attorney consultants.  He had one to start with; he has two now.  And that's been supported by us and by the Australian government.  So he's had plenty of support there.  He's had visits with his family, as you know.  And the embassy has been authorized to make a number of welfare visits down there also. 

 

            But as far as the specific items that the prime minister was discussing, I couldn't answer that. 

 

            MR. WHITMAN:  Very good, thank you. 

 

            GEN. HEMINGWAY:  Thanks very much. 

 

            Q     Thank you.

 

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