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American Forces Press Service

Officials Announce Changes to Military Commissions Procedures

By Kathleen T. Rhem
American Forces Press Service

WASHINGTON, Aug. 31, 2005 Changes to military commissions to try detainees from the war on terrorism will bring the proceedings closer to the traditional judge-and-jury system in the American courts, a senior official involved with the commissions said here today.

"I've maintained consistently that we would try to make those improvements that were necessary to the process as we moved along," Air Force Brig. Gen. Thomas Hemingway, legal adviser for military commissions, said in a Pentagon news briefing. "We learned lessons when we started these (commissions in August 2004), and these changes are a result of the lessons learned."

The most significant change pertains to the commission members and presiding officer. Under the original order, the presiding officer and up to six other panel members were to rule on all decisions of law and evidence, according to a DoD news release issued today. The same officers would have ruled on questions of law and what could be admitted in court, as well as decide a defendant's guilt or innocence and sentencing. Of these individuals, only the presiding officer was required to be an attorney.

Under the new rules, only the presiding officer will rule on questions of law. And the presiding officer will not be present for deliberations, nor will he have a vote in deciding guilt or innocence or in sentencing.

"Aligning this more in tune with a judge-jury model, I think, will make for a more efficient and orderly process," Hemingway said.

The new rules also set a minimum number of officers who can sit on the panel for both capital and noncapital cases. Noncapital cases now require a minimum of three officers in addition to the presiding officer, while seven panel members and a presiding officer must now hear capital cases.

The new rules strengthened wording concerning defendants' access to the proceedings. Under previous rules, a defendant "may be present to the extent consistent with the need to protect classified information and other national security interests," according to the release.

The new rules state the defendant "shall" be present, but with the same caveats on protecting classified information and national security interests.

However, an addition to the rules states that such protected information will be excluded from a trial if "its admission would result in denial of a full and fair trial," the release stated.

The final change allows the Military Commissions Review Panel, which reviews decisions on commissions cases for legal sufficiency, to take up to 75 days from the date it receives the official transcript to review each case. Previous rules allowed the review panel 30 days from the date a case was completed to finalize a review.

Hemingway said the changes introduced today would result in "a smoother and more efficient system for delivering the final end product - a full and fair trial."

Hearings in the first four terrorism cases began at Guantanamo Bay, Cuba, in August 2004 but were halted by a federal judge's ruling in November. A federal appeals panel overturned that ruling July 15, and officials have been working to resume hearings.

Hemingway gave no indication of when the legal proceedings might resume, citing ongoing cases in several other U.S. courts. "That's the $64,000 question," he said. "As soon as we feel we have clearance from the courts, we'll be in hearings 35 to 45 days subsequent to that."

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