11:30 A.M. EDT
Audio
MODERATOR: Ladies and gentlemen, thank you so much for coming to the Washington Foreign Press Center on this rainy morning. We're very pleased to have Brigadier General Thomas W. Hartmann. He is the Legal Adviser to the Convening Authority at the Department of Defense in the Office of Military Commissions, and he'll have a statement to read and then he'll be pleased to take your questions. Thank you so much.
General.
BGEN HARTMANN: Good morning. Earlier today, the Office of the Convening Authority for Military Commissions received sworn charges against Ahmed Khalfan Ghailani of Zanzibar, Tanzania. The charges, which will be translated and served on Mr. Ghailani at Guantanamo Bay, Cuba, allege facts surrounding his involvement in the attack on the United States Embassy in Dar es Salaam, Tanzania, on August the 7th, 1998.
Six of the nine charges against Mr. Ghailani carried a maximum penalty of death, and the chief prosecutor has recommended that this case be referred as capital, thereby seeking to bring this as a death penalty case.
As you may recall, on August the 7th, 1998, exactly eight years after the United States began deploying troops to Saudi Arabia, in response to the Iraqi invasion of Kuwait, twin truck bombs detonated in front of the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania.
Within minutes of the first attack on our Embassy in Kenya, the American Embassy in Tanzania was attacked, killing 11 innocent people, injuring hundreds, and causing substantial damage to the Embassy.
Through the sworn charges we are discussing today, Mr. Ghailani is alleged to have participated in the planning and the attack on the United States Embassy in Tanzania by the following events, among others: first, purchasing TNT, detonators and detonation cord on repeated occasions and transporting the bomb components to Dar es Salaam, Tanzania; second, moving the bomb components to various safe houses in and around Dar es Salaam; third, assisting in the purchase of the truck used in the bombing; fourth, facilitating the purchase of oxygen and acetylene cylinder tanks which, with the TNT, were used as bomb components; fifth, escorting the bomb engineer between Dar es Salaam and Mombasa, Kenya, after the bomb had been assembled; sixth, scouting the American Embassy in Tanzania with the suicide bomb driver; seventh, meeting with the co-conspirators in Nairobi, Kenya shortly before the bombing; and, eighth, fleeing from the region of Tanzania and Kenya to Karachi, Pakistan one day prior to the bombing.
Based on these allegations and others that are outlined in the charge sheet, Mr. Ghailani is charged with the following substantive offenses: murder in violation of the law of war; murder of protected persons; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; destruction of property in violation of the law of war; and terrorism. He is also charged with conspiracy to commit all of the above offenses. In addition, Mr. Ghailani is charged with providing material support to terrorism. This charge alleges that, after the bombing, Mr. Ghailani continued in his service to al-Qaida in a variety of ways, including as a document forger and physical trainer at an al-Qaida training camp and as a bodyguard for Usama bin Ladin.
Upon receipt of the sworn charges and following completion of a legal review by me, the Convening Authority, the Honorable Susan J. Crawford, in her sole discretion, will review the charges and supporting evidence to determine whether probable cause exists to refer the case for trial by military commission, and, if so, whether it should be referred as a capital case.
In the military commissions process, every accused has the following protections: to elect not to testify at trial and to have no adverse inference drawn from it; to be represented by detailed military counsel as well as civilian counsel of his own selection at no expense to the government; to examine all evidence used against him; to obtain evidence and to call witnesses on his own behalf, including expert witnesses; to cross-examine every witness called by the prosecution; to be present during the presentation of evidence; to have a military commission of at least five military officers determine his guilt beyond a reasonable doubt by a two-thirds majority or, in the case of a capital punishment case, a unanimous decision of a military commission composed of at least 12 members; and to have an appeal to the Court of Military Commission Review initially, followed by the Court of Appeals for the District of Columbia Circuit, and ultimately the United States Supreme Court.
These protections are guaranteed to each accused under the Military Commission Act and they are specifically designed to ensure that every accused receives a fair trial consistent with American standards of justice.
The presentation of these charges today again highlights the outstanding cooperative efforts of a joint team of military and Department of Defense prosecutors and a multitude of other governmental agencies, reflecting the continued progress of the military commissions.
It is important to remember that these sworn charges are only allegations of violations under the Military Commissions Act and that the accused is and will remain innocent unless proven guilty beyond a reasonable doubt.
I'll take your questions. Yes.
MODERATOR: Ladies and gentlemen, if I can just remind you to state your name and your media organization before asking your question. Thanks so much. Oh, and wait for the microphone.
QUESTION: Good morning.
BGEN HARTMANN: Good morning.
QUESTION: Mounzer Sleiman, Al-Mustaqbal Al- Aarabi. When I heard your statement, it just reminded of the issue that many people ask me in the region and here, that why we cannot apply the same situation to the people who perpetrated the -- the September 11 attacks. We have the masterminds, we have others that -- in detention, and there is no charges has been publicly -- there were no court been assigned at all. At the same time, I just came fresh from the region and the issue of situation in Iraq also in the minds of people. How come people who commit, what it seems to me, crimes, if they are from the U.S. side, they will not have any kind of justice rendered to them or process in the public opinion that will be fair and for everybody?
At the same time -- last thing -- we have a colleague from Al Jazeera still being detained in Guantanamo. He was a camera man. Why you cannot bring charges against him and then so at least he can defend himself?
BGEN HARTMANN: Well, as I understood your questions with regard to the 9/11 -- the people who were allegedly responsible for the 9/11 attacks, they have been publicly charged. We announced that on February the 11th that charges were sworn against them. In fact, I announced it in this room and at the Pentagon on February the 11th. We received sworn charges against six people that are accused in the 9/11 attacks. So that is public information. They have publicly been charged and they are at Guantanamo Bay.
This is another person today who's been charged at Guantanamo Bay, along with -- we now have 14 people who are in the charging process, whether they're high-value detainees, those that the President announced in September of 2006 or others that have been charged. So there are a total of 14 now in the swearing, referral or trial process.
In terms of the fairness of the process, it's extraordinary. We match virtually every right that we make available to our uniform soldiers, sailors, airmen and Marines. And we're making them available to people who are alleged to have committed war crimes against the United States, an extraordinary set of things. We give them the right to detailed military counsel. In some cases, they have up to five counsels at the counsel table. We use beyond a reasonable doubt standard as we do with all of our American standards of justice with regard to criminal proceedings. The burden is on the government. The accused have the right to call witnesses, to cross-examine, to remain silent in the courtroom. They have the right to use the rules of evidence, the rules of procedures and they've taken advantage of those rights. They've had very aggressive defense counsel, and that's the way it should be.
But these matters are going to be dealt with in the courtroom and that's where the crucible of justice is for us. It's the best standard we know for finding the truth, and that's how we're going to proceed in these cases.
QUESTION: What I meant is that you have detailed charges on Mr. Ghailani, or Ghailani, and you said there are charges against the perpetrator of September 11. But there is no court -- there is no procedure to the public to know whether those guys -- whatever they've done, similar to the procedure that you are now going to do with -- involve the court.
BGEN HARTMANN: This is the court proceeding. We will have the court proceeding --
QUESTION: When we will have public court or military court for those individual that have been detained for a long time?
BGEN HARTMANN: Well, we --
QUESTION: The question you did not answer is the colleague of ours from Al Jazeera.
BGEN HARTMANN: We have about 80 --
QUESTION: Why he is still being detained?
BGEN HARTMANN: We have about 80 people that we're anticipating will be tried through the military commission process, and those will be public hearings. More than 125 members of the press have gone to Guantanamo and witnessed those and seen those; nongovernmental organizations, Human Rights Watch, Human Rights First, the ACLU, the American Bar Association, UN rapporteurs have been down there. So the trials are public. The proceedings are public. They're reported on quite consistently. So I'm not sure what you're referring to there. And as to the other gentleman, I have no information on that.
Go ahead.
QUESTION: General, a couple of days ago, five former secretaries of state -- pardon me? Oh, sorry. Mike Kellerman, AP TVS (ph). Five secretaries of state, former, recommended that Guantanamo be closed. Should it be closed? And also, isn't the continuation of this facility a violation of the Geneva Conventions? I welcome your legal opinion.
BGEN HARTMANN: My direction, from the President of the United States and the Deputy -- and the Secretary of Defense, are to proceed with these trials; to the extent we proceed with trials, to proceed with them at Guantanamo Bay, Cuba. And that's what I am going to do.
So I think that answers your question as to whether -- as to your second question, I have no opinion on that. We follow the policy guidance of the United States. The United States is fully complying with the Geneva Conventions in every way, to the extent they apply, and we're proud of our record internationally and with regard to domestic law.
QUESTION: I think there are people who would disagree with you on that. But let me -- one more quick question. When are these trials alleged -- when do they start? I understand you're building -- why don't you describe how you're building a courtroom down there and what you're doing to get ready for the trial? And please tell me when they begin.
BGEN HARTMANN: Sure. The expeditionary legal complex is the complex that's being constructed down at Guantanamo Bay. It's virtually complete. It's within the last elements of being complete. There's a press overflow there -- there is room. It's probably the most advanced courtroom on earth, with all the facilities inside of it, electronic facilities, secure facilities, et cetera. It's very well prepared and it's ready to go. We expect there to be proceedings in there in a very short period of time.
So in terms of the timing of proceedings, no one can ever predict when a trial is going to move. But arraignments occur within 30 days after an accused receives referred charges by the military -- by the Convening Authorities. So should Judge Crawford refer cases to trial, then the accused must be arraigned. "Arraigned" means that he's brought in, read the charges if he wants to, is asked for his pleas and is explained his counsel rights. We had some arraignments about two weeks ago, and expect to have some more arraignments in -- later in April, in the next couple weeks of April. And that process will continue.
And then once there's an arraignment, then the trial process moves. Usually, the rules require that the assembled -- the court be assembled, and that is that you bring in the jury within 120 days of referral. But that, oftentimes, slips back simply because the parties may file motions or seek additional discovery. So that statutory period can be pushed out -- the 120 days -- and so can the arraignment. But ordinarily that is an easier process to complete in terms of arraignment as opposed to actually getting the trial going because of all the protections that are in place for the accused to have discovery, to file motions, to meet with his counsel and so forth.
So we take the obligation to protect the rights of the accused, the protections of the accused, very seriously, and we move the process in that way.
Yes.
QUESTION: Alan Habbick, CBC TV.
BGEN HARTMANN: Hi, Alan.
QUESTION: Can I ask you about the Omar Khadr case? Has there been any new discussion or negotiation with the Canadian Government about returning Khadr to Canada to face trial there or to face charges there, rather than go through the military commission process?
BGEN HARTMANN: I'm not aware of any.
QUESTION: Can I also ask you one other question about that? Given the fact that he was 15 years old when this incident happened in Afghanistan, and you could assume that human rights groups have -- would do, as they have done, raise the issue of his status as a child soldier, whether or not he is one or not, and that it was going to be contentious. Why did the military commissions decide to proceed with that particular case as one of the first ones out of the gate?
BGEN HARTMANN: Well, the commissions proceed with cases based upon their review -- the prosecutors proceed with cases and recommend referral of cases based upon their review of the evidence in conjunction with the intelligence community and the law enforcement community. There's no specific timetable in terms of any particular case, but that's -- they had the evidence that they thought they needed to prove the case, initially by probable cause and then beyond a reasonable doubt. But Omar Khadr is charged with throwing a hand grenade, among other things, that resulted in the death of Sergeant First Class Christopher Speer, a hand grenade that blew a hole in Christopher Speer's head, and those are allegations. And we proceed to trial based upon the allegations, based upon the charges and based upon the law. And the matter of his age is being litigated in the case right now, and it's most appropriate to allow that to proceed through the trial process.
QUESTION: Sara Hussein Saudi Press Agency. I wanted to ask you a question about the defense lawyers. There have been sort of questions raised every time these new charges come out about whether the defense has enough lawyers to go around. And I gather that Colonel David, who I spoke to this morning, still feels like he doesn't really have enough lawyers on board. In fact, he even said that he'd spoken with you guys to ask you to essentially stay the referral of the six high-value cases because they don't have enough guys on board. Is that something that you're entertaining as a possibility, and do you foresee stalling the referral of this case because of the issues with resources for the defense team?
BGEN HARTMANN: The defense team has, as of this morning, 11 uniformed counsels available to be assigned cases. They have four Department of Defense civilian counsels. There will be three or four more uniformed JAGs and three or four more in May. So by the end of May they would probably have 18 uniformed counsels available for the detailing of counsel to cases. To my knowledge, they've only detailed counsel to five cases. They have 11 uniformed counsels as we speak this morning. They also have more paralegals than the prosecution has. I've directed that they be given 14 analysts. They have six analysts right now, two more in the process of being brought on right now, but 14. They have facilities in the United States and in the District of Columbia area. They have facilities at Guantanamo to get access to classified information. We've made training available to them. We've offered training to them. They've taken the training.
We continue to resource them appropriately in conjunction with the Judge Advocates General, who are the commanding generals for the JAG departments. Those generals look at the qualifications of the people that they're sending over to be made available as detailed military counsel. Those are the same kind of counsel we make available to our uniformed soldiers, sailors, airmen and marines. So - and these are not inexperienced counsel. They are, by and large, very experienced trial counsel.
So we're continuing to source them. We'll continue to make them available. And we will continue to make sure that they have the counsel they need based upon the charging process that continues.
QUESTION: A follow-up. You feel that as of now and with the lawyers that they have coming on board, they have sufficient resources for the number of cases that are likely to be coming their way?
BGEN HARTMANN: That's correct.
QUESTION: Okay. Thanks.
BGEN HARTMANN: The lady, please - the gentleman.
QUESTION: Thank you. Mahmoud El-Hamalawy with Al Jazeera TV. Thanks for speaking with us. In terms of the charges, how do you formally, I guess, notify the defendant? And also, you spoke a lot about evidence that remains for this case. Can you just briefly mention to us how that evidence was attained and if any of it came by means of confessions? Thank you.
BGEN HARTMANN: He will be notified of the charges. As to your first question, he will be notified of the charges after the translation is completed into his native language, which is Swahili. That translation will be completed and then he will be receiving a copy of the sworn charges within a matter of days, could be later today. He will receive that.
In terms of any evidence that will be used in the case, I don't comment on evidence that will be used in the case. That's why we have the trial. That's why we have the - all the rights and protections that I explained to you earlier. These protections are extraordinary for this accused and for any accused in this military commission process. They have the right to counsel, to review the evidence, to confront, to call witnesses on their own, et cetera. So the purpose of all those rights is to make sure that that's dealt with most comprehensively in the courtroom in the presence of the accused and their accuser. And that's how you get the absolute best engine of truth that I know of on earth and that is a trial. So we'll let that carry its way out in the trial process.
Ma'am?
QUESTION: Corine Lesnes from Le Monde. You were talking about the date of the next trials - excuse me. Could you be just a little bit more specific on the date? And is - I understand so if you have a press overflow, that the press will, of course, be there, but the NGOs - do you anticipate having them and some families of detainees? Is it possible that it might be there?
BGEN HARTMANN: Good questions. In terms of the timing of trials, I can't give you any more on that. I'm sorry. The best I can do is tell you that on all the cases, once they're sworn, they are sent to the office where I work, to the Office of the Convening Authority. We work very expeditiously to review the charges and make a recommendation to the Convening Authority as to whether she - we recommend that she refer the case and then Mrs. Crawford is moved very quickly in terms of evaluating those and bringing them to a referral decision. Once she makes that referral decision, then we start that 30-day clock where the accused is arraigned in the courtroom. So that's really the closest we come to, to a statutory obligation.
In terms of the press, as I said, we've had more than 125 members of the press attend and the NGOs, the nongovernmental organizations were happy to do that and we're continuing to do that as much as we can. In terms of families of the detainees who might attend the hearings, that's certainly an open question - the family of an accused, not just the detainee, a family of an accused - we haven't gotten that question recently, but if we get that question from an actual family that would want to attend, we would certainly take that very seriously just as we would families of the victims of any particular crime that's alleged, any particular war crime that's alleged.
Yes.
QUESTION: Hi, Heather Yamour, Kuwait News Agency. In a recent New York - sorry, excuse me, Los Angeles Times report, you - story, rather, you said that the Pentagon was "increasing the progression of cases" in regards to this subject. I wanted to know - I wanted to know why, why now? You know, you announced in February that there are going to be six - you know, and now, Ghailani. Can you please elaborate on the timing and rumors that it's politically motivated, given that there is an election around the corner? And also, I'd like to ask you whether the trial - any of these trials, transcripts will be made - eventually be made public, to the public?
BGEN HARTMANN: The transcripts will eventually be made public and the process - what we ordinarily do is, once the transcript is completed, the judge authenticates the transcript and then the transcript would be available for the judge to release and be made public. It's ultimately the judge's decision and the Convening Authority's decision to make the transcript public, but I would expect that these transcripts would be made public. But again, it's their decision after it's been authenticated. And authenticated means that the judge has reviewed the transcript, along with the counsel, to make sure that the transcript accurately reflects what occurred in the courtroom.
In terms of the timing of the cases, that's been my focus since the - since I have arrived to ensure that we are properly analyzing the cases with the intelligence community, the law enforcement community and the legal community which consists of the Department of Justice and the military legal community. There's no political pressure, absolutely none. No member of any executive agency in the American Government has made any intimation to me or any implication to me that these cases need to move more quickly in connection with anything other than the movement of the cases in my role as the supervisor of the prosecution and in my role as the legal advisor.
So I try to move the cases as quickly as we can based upon the need for justice, the need for fairness, the need for proper evaluation of the facts and the law. And that's the key to the movement of the cases. And I expect that process and that procedure and that speed to continue for some period of time. We're going to move out rapidly on these cases to the extent that the law and the facts coalesce to support charging decisions.
MODERATOR: General, one or two more.
BGEN HARTMANN: Okay.
QUESTION: Just sort of a point of clarification. Once the charges have been announced, they go first to you and then to Susan Crawford; is that correct?
BGEN HARTMANN: That's correct. They go through me and then I do a legal review and send it to Mrs. Crawford.
QUESTION: So the six high-value cases that were announced in February, where are those now? Are they sitting with you or are they with Susan Crawford?
BGEN HARTMANN: They're with me. I continue to review them. There are thousands of pages in the referral package and we're reviewing it very, very carefully, as we do all the cases, to make sure that the facts and the law line up and that I can make an appropriate and well-organized and well-reasoned decision in my recommendation to Judge Crawford.
QUESTION: And do you have any assessment of when they're likely to move up to Judge Crawford?
BGEN HARTMANN: Hopefully very soon.
QUESTION: Thank you.
BGEN HARTMANN: Yes, sir, the gentleman in the back.
QUESTION: Thank you. It's been reported that a couple of the six primaries were supposedly waterboarded. This question remains. I'm curious about how the government is going to prosecute if, as expected, defense attorneys come forward and say, look, the evidence is tainted, these confessions were forced.
BGEN HARTMANN: There's no better engine of truth that I know of and that's the well of a courtroom. And issues with regard to evidence and issues with regard to the obtaining of evidence will be dealt with in the courtroom, in the presence of the accused, in the presence of the trial counsel and the prosecutor and in the presence of the judge. And the answer to your question will be determined with finality in that courtroom. That's the American system of justice and that's the best system of justice and that's the best way to find the truth that I know of.
Thank you.
MODERATOR: All right. Thank you so much.
