Update on Military Commissions

MR. BOOKBINDER: Good afternoon and welcome to the Foreign Press Center. We are pleased this afternoon to have Brigadier General Thomas L. Hemingway, who is the Legal Advisor to the Appointing Authority, Office of Military Commissions, Office of the General Council, Department of Defense, to give us an update on Military Commissions.

Without further ado, General.

BGEN HEMINGWAY: Thank you very much and thank you for being here this afternoon.

What I wanted to discuss with you are some changes that we have announced today to the Military Commission Order. As you know, there are a number of different orders and instructions that set up the machinery for Military Commissions. Of course, there was the President's military order of 13 November 2001, in which he authorized the Secretary of Defense to establish various rules. And pursuant to that, we have both orders and instructions that provide for the procedure for Military Commissions.

If it's an order, it's signed by the Secretary of Defense. If it's an instruction, it's signed by the General Counsel of the Department of Defense. And what I want to talk to you about today are some changes that we have made to Military Commission Order No. 1 that has been approved by the Secretary.

The first issue is under the original order. There was a provision that a commission would be composed of no more than seven members, which included the presiding officer. Now, it provides that the commission in a non-capital case is composed of the presiding officer and at least three members. For a capital case, it is composed of the presiding officer and at least seven members. So there is no longer a cap on the number of members. It's at least three and at least seven and the appointing authority then has the discretion to appoint a greater number to the commission than he had the discretion to appoint before.

Also, as far as alternate members are concerned, we had a provision in the original order that provided for one or two alternate members. Now, it says at least one member or more. So again, the appointing authority has the discretion to appoint additional alternate members if there is a desire to do so.

One of the significant changes in this new order has to do with the role of the presiding officer. Under the original order, all members, including the presiding officer, ruled jointly on all questions of law and all questions of fact. Under this change to the Military Commission order, the presiding officer will rule separately on all questions of law, all challenges against commission members and all interlocutory issues. The commission members will still have the right to override the decisions of a presiding officer on admission of evidence only.

So for example, if the presiding officer says, "I don't think this evidence has probative value, I'm not going to admit it." If the majority of the panel members felt that it did have probative value on that issue, they could override the presiding officer; but, on issues of law, on issues of challenges and on interlocutory issues, the presiding officer rules.

Furthermore, under this change to the order, the presiding officer will not participate in voting on findings and sentence. He will instruct the commission members on the law, but will not vote with them. So when they go into closed deliberations, they will go into closed deliberations alone, without the presiding officer, just as a jury does under our system of law in the United States.

Now, the original order had provisions in it that said that the accused could be present during the proceedings, unless it was inconsistent with national security. We've made a change in that the accused -- the order provides now -- shall be present to the extent consistent with national security.

And furthermore, when it comes to protected information, or as more commonly called "classified information," the original order permitted denial of access by the accused in civilian counsel. Now, under this order, if access is denied, the presiding officer is required to exclude that evidence- if its admission would result in the denial of a full and fair trial. That is, from my point of view, a significant change in this instruction and to quote directly from the new order, it says, "Not withstanding any determination of probative value, under the prior sections of the order, the presiding officer shall not admit the protected information as evidence if the admission of such evidence would result in the denial of a full and fair trial."

We have also increased the time that the review panel has to review a case after the conclusion of the trial. The original order, you may remember, provided that they had to review the case within 30 days. Now we had a commitment to enlarge that time when necessary.

However, in this new order, we have provided that the review panel has 75 days within which to conduct their review after they have received the authenticated transcript. Before the time started to run after judgment, and the rules provided that the appointing authority had to do an administrative review of the record of trial before transmitting it. So, that was all part of the 30 days.

Now, the time that it takes to prepare the transcript, the time it takes to authenticate it, run it through the appointing authority for administrative review, does not count as part of the appellate review process. It's only when they are actually served the authenticated record of trial that that time begins to run. And as you know, during the appellate review, the accused has the right to file briefs, has the right to request oral argument and there is a provision for consideration of amicus briefs during the review.

There is one other change that we made that's not mentioned in the handout, the two-page handout that I provided, and that has to do with the appointment of a by-name military attorney. There's a provision in the original order that says if the accused asks for a specific military defense counsel, then the original defense counsel will be discharged of responsibility, unless there's a request made to the appointing authority to keep them on a case. We still have a provision for that, but now the decision maker is the chief defense counsel as opposed to the appointing authority. So those decisions on representation will be made exclusively within the defense community.

And with that, I'm happy to take your questions.

MR. BOOKBINDER: Okay. Thank you, General, for the clear and precise explanation of the changes.

And I remind you, before asking a question, please identify yourself and your media organization. Please wait for the microphone. Shall we begin with India in the third row?

QUESTION: T.V. Parasuram, Press Trust of India. So far, how many trials have been held under the new military procedure?

BGEN HEMINGWAY: We have started four and we were entering into the motion practice last fall when we held the proceedings in abeyance as a result of the actions in cases that were filed in Federal District Court. Some of those are still pending. The Hamdan case is the case that was considered by the Circuit Court of Appeals for the District of Columbia that held that the President had the authority to conduct military commissions. That's been appealed to the Supreme Court, a writ for certiorari was filed.

At the same time they applied for a stay of the issuance of the mandate from the Circuit Court. I would defer to the Justice Department -- I suspect the Circuit Court of Appeals will, in deference to the Supreme Court, withhold issuance of the mandate in that case, until the Supreme Court rules on the application for writ of certiorari. It's my understanding that the first conference of the Supreme Court is the last week in September. So I wouldn't expect any ruling on the Hamdan case, application for writ of certiorari, until sometime in October at the earliest.

As far as the Hicks case is concerned, which was also underway, that case is pending before Judge Kollar-Kotelly in the Federal District Court in D.C. She has yet to decide whether or not she wants to hear argument on some of the motions that had been filed before her court that were not impacted by the decision in the Hamdan case.

QUESTION: One more question. This is that only those who were accused of war crimes that were tried. I was wondering what's the definition of "war crime?"

BGEN HEMINGWAY: Well, the Order Number 2 has a list of all of those things that we would consider to be war crimes. But the four people -- and I didn't mention Al-Bahlul and Al-Qosi in discussing those cases with you. The four people who haven't been charged have been variously charged with conspiracy to commit violations of the law or by conspiring to target civilians, to target civilian objects and conspiring to commit other violations of the law of war. And one of them has also been charged with aiding the enemy in an attempted murder by an unprivileged belligerent. But those are the kinds of offenses that we would expect to be filed.

As you know, it's our view that al-Qaida, as a non-state actor, doesn't have the right to engage in armed conflict. And so by engaging in armed conflict and targeting persistently civilians -- that's a violation of the law of war. And the charges, I think will be related. We have other offenses that could be charged, but those are the kinds of cases that I've reviewed to date, the types of offenses that I think you'll see in the future.

MR. BOOKBINDER: Okay, let's go to Venezuela upfront.

QUESTION: Thank you, General. Sonia Schott, Radio Valera, Venezuela. Those procedures you describe will have any influence in Guantanamo, any improvement in the conditions of the detainees there? And I would like to know if you have any details on the journalists have been detained in Abu Ghraib, in Iraq? Thank you.

BGEN HEMINGWAY: I don't have any information. You'll have to ask somebody about what's going on in Iraq. That far exceeds the scope of my responsibilities.

As far as the procedures are concerned, I consider them to be a significant improvement from a process point of view. If you were following the cases last fall, it took a great deal of time to deal with the challenges for cause that the defense counsel lodged against the various commission members. We had to have a finalized transcript. It was transmitted here to Washington, reviewed by the appointing authority and then decisions were made here as to whether or not to sustain those challenges for cause.

In our judicial systems in the United States, usually those things are ruled on at the trial level by the judge, and it's a much smoother and more expeditious process. By giving the presiding officer the authority to rule on these, I think it makes for a much smoother and expeditious process, more orderly process.

Now these rules -- I think you asked about the conditions at Guantanamo, these rules apply to the process of trial by military commission. It has nothing to do with the conditions under which we hold detainees, which by the way, from our point of view, are humane and meet international standards.

MR. BOOKBINDER: Okay, let's go to Taiwan in the second row.

QUESTION: Thank you. Betty Lin of the World Journal. There have been a number of Uyghurs that have been found not guilty and the State Department has approached like a dozen countries and they failed to find them a new home. So I wonder how -- under what kind of circumstances will they be released and can they be released here in the States and can they come to a district court for a trial or hearing under the interim release?

BGEN HEMINGWAY: Well, several issues you've got rolled into one question there. In the first place, they have been moved at Guantanamo into an area that's been prepared just for them. They have television. They have video now. They have radio -- much more comfort facilities. But as far as what arrangements the State Department has been able to arrange for their accommodation by another country, I don't know.

And as far as their access to the Federal District Court, of course, there's already a case pending dealing with them right now. And I don't know what the Federal District Court judge is going to do in that case. But he has been informed of the change in conditions under which they're being accommodated there. But you'd have to address your questions to the State Department on what the ongoing efforts are to find them a place to go.

QUESTION: What's a concern for release them here in the States?

BGEN HEMINGWAY: As I say, I think you need to address any questions to the State Department about where the arrangements are going to be made to release them. I don't know what the efforts are, to whom they're talking or anything like that.

MR. BOOKBINDER: Okay. Are there any additional questions? We'll go back to India, please. Thank you.

QUESTION: Parasuram again. I do want to find out whether (inaudible) in a capital case. Does the verdict of the jury have to be unanimous, as in civilian courts?

BGEN HEMINGWAY: Yes, in a capital case it would have to be unanimous. As I've pointed out before, I think it's worth remembering none of these cases that are before commissions now have been referred as a capital case. I have not, to date, seen any cases that would result in a recommendation by me that they be tried as capital. That doesn't mean that I might not see one in the future, but I certainly haven't to date.

Another point that I didn't mention when we were discussing the presiding officer, it does well to remember that the presiding officers are all judge advocates of the Uniform Services who have had experience as trial judges.

MR. BOOKBINDER: Okay, are there -- yes, we'll go to Taiwan in the second row.

QUESTION: I'd just like to know how many Uyghurs are there held over at Guantanamo Bay and how many have been transferred to a better circumstances?

BGEN HEMINGWAY: I think the number was five, but maybe the public affairs people could get you that information on it. My responsibilities don't include the general population down there, so my numbers might not be accurate. I would recommend that you check with our public affairs people and they can get you a firm number.

MR. BOOKBINDER: We can get you that after the briefing. We'll get you that. Okay. Are there any other questions? Okay.

General, thank you very much for coming.