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U.S. Department of Defense
Office of the Assistant Secretary of Defense (Public Affairs)
News Transcript

Presenter: Legal Advisor to the Convening Authority in the DoD Office Of Military Commissions Brig. Gen. Thomas Hartmann February 11, 2008

DoD News Briefing with Brig. Gen. Hartmann from the Pentagon

BRYAN WHITMAN (Pentagon spokesman): Well, good morning and welcome. Today, we have reached a significant legal milestone in the history of our operations at Guantanamo. As you know, over the past several years we've been moving forward with the military commission process, which holds accountable individuals accused of alleged war crimes. Since 2004 we've had dozens of pretrial hearings that have been held on a total of 12 detainees at military commissions. Under the Military Commissions Act of 2006 one was found guilty of material support to terrorism last year. Two are currently facing trial dates in the next several months, and several are in various early stages of the commission process.

But here today we have to announce new sworn charges and to discuss the military commissions process and these new charges today is Air Force Brigadier General Thomas Hartmann, who is the legal advisor to the Convening Authority for the Office of Military Commissions.

And with that, General, why don't I let you walk them through this.

GEN. HARTMANN: Good morning.

Today, the Convening Authority for Military Commissions received sworn charges against six individuals alleged to be responsible for the planning and execution of the attacks upon the United States of America, which occurred on September the 11th, 2001.

These attacks resulted in the death of 2,973 people, including eight children.

These charges allege a long-term, highly sophisticated organized plan by al Qaeda to attack the United States of America.

The accused are Khalid Sheikh Mohammed, Walid Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi and Mohammed al Kahtani.

Now that sworn charges have been received, the Convening Authority will review the charges and supporting evidence to determine whether probable cause exists to refer the case to trial by military commission.

The chief prosecutor has requested that the charges be tried jointly, and that they be referred as capital for each defendant. If the Convening Authority, Mrs. Susan Crawford, in her sole discretion, decides to refer the cases as capital, the defendants will face the possibility of being sentenced to death.

Each of the defendants is charged under the Military Commission Act with the crime of conspiracy and with the separate substantive offenses of murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and material support to terrorism.

The first four defendants -- Khalid Sheikh Mohammed, Walid Bin 'Attash, Ramzi Binalshibh and Ali Abdul Aziz Ali -- are also charged with the separate substantive offense of hijacking or hazarding an aircraft. All the charges are alleged to have been in support of the attacks on the United States of America on September the 11th, 2001. The charge sheet details 169 overt acts allegedly committed by the defendants and their uncharged co-conspirators in furtherance of the 9/11 events.

The charges allege that Khalid Sheikh Mohammed was the mastermind of the 9/11 attacks by proposing the operational concept to Osama bin Laden as early as 1996, obtaining approval and funding from Osama bin Laden for the attacks, overseeing the entire operation and training the hijackers in all aspects of the operation in Afghanistan and Pakistan.

Walid Bin 'Attash is alleged to have administered an al Qaeda training camp in Logar, Afghanistan, where two of the September 11th hijackers were trained. He is also alleged to have traveled to Malaysia in 1999 to observe airport security by U.S. air carriers to assist in formulating the hijacking plan.

Ramzi Binalshibh is alleged to have lived in the Hamburg, Germany, al Qaeda cell where three of the 9/11 hijackers resided. It is alleged that Binalshibh was originally selected by Osama bin Laden to be one of the 9/11 hijackers and that he made a martyr video in preparation for the operation. He was uncertain -- he was unable to obtain a U.S. visa and therefore could not enter the United States as the other hijackers did. In light of this, it is alleged that Binalshibh assisted in finding flight schools for the hijackers in the United States and continued to assist the conspiracy by engaging in numerous financial transactions in support of the 9/11 operation.

Ali Abdul Aziz Ali's role is alleged to have included sending approximately $127,000 to the hijackers for their expenses and flight training and facilitating the travel to the United States for nine of the hijackers.

Mustafa Ahmed Adam al-Hawsawi is alleged to have assisted and prepared the hijackers with money, Western clothing, travelers checks and credit cards. He is also alleged to have facilitated the transfer of thousands of dollars between the 9/11 hijackers and himself on September the 11th, 2001.

Mohamed al Kahtani is alleged to have attempted to enter the United States on August the 4th, 2001, through the Orlando International Airport, where he was denied entry. It is also alleged that al Kahtani carried $2,800 in cash and had an itinerary listing a phone number associated with al-Hawsawi.

Now that the charges have been sworn, they are being translated into the native language of each of the accused and served on them. I will evaluate the charges and all of the supporting evidence, along with the chief prosecutor's recommendation, and I will forward them with my independent recommendation to Mrs. Susan Crawford, the convening authority for the Military Commissions.

She will review all of the information and make her independent decision whether to refer any or all of the cases to trial by military commission and, if so, whether to refer them as capital. Just as in military court martial practice, the pretrial advice must contain my legal conclusions, as well as whether the charges are supported by probable cause, are subject to jurisdiction by the military commission and should be tried by military commission.

The convening authority's final decision follows her review and consideration of my advice, the file provided by the prosecutors and any national security concerns. This is very similar to the sequence of events that occurs in military legal offices thousands of times a year, all around the world. If the convening authority refers the charges to trial, the prosecution bears the burden of proving the case beyond a reasonable doubt, which is the standard applied in all U.S. and military criminal trials.

In the military commission process, every defendant has the following rights. The right to remain silent and to have no adverse inference drawn from it. The right to be represented by detailed military counsel, as well as civilian counsel of his own selection, at no expense to the government. The right to examine all evidence used against him by the prosecution. The right to obtain evidence and to call witnesses on his own behalf, including expert witnesses. The right to cross-examine every witness called by the prosecution. The right to be present during the presentation of evidence. The right to have military commission panel of at least five military members determine his guilt by a two-thirds majority or, in the case of a capital offense, a unanimous decisions of a military commission composed of at least 12 members. The right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court.

These rights are guaranteed to each defendant under the Military Commission Act and are specifically designed to ensure that every defendant receives a fair trial, consistent with American standards of justice. The sworn charges, prepared by the joint team of military and Department of Justice prosecutors, highlight the tremendous cooperative efforts put forth by a multitude of government agencies, and reflect the continued progress of the military commissions.

And as the legal advisor to the Convening Authority, I remind you that the sworn charges are only allegations, only allegations of violations under the Military Commission Act, and that the accused are and will remain innocent unless proven guilty beyond a reasonable doubt.

Take your questions.

Q Sir, can you talk about the steps once more but with a timeframe? How soon would Crawford come back with her decision? When might trials start?

GEN. HARTMANN: There's no specific statutory time specified for Judge Crawford to review the file. We will receive the file, I expect, later in the week, and we will work on it very quickly, as quickly as we can with the entire staff focused on that.

I can't give you a specific time frame. When Judge Crawford completes her review and should she decide to refer the case to trial, then 30 days following that the accused will be arraigned, within 30 days the accused will be arraigned, and that means that they'll be read the charges in court and have the opportunity to enter a plea.

One hundred twenty days after Judge Crawford refers the case the court is assembled. That means the jury is brought in or the members -- the panel members, the military panel members. In between that time, there will certainly be discovery and motions as there have been in the past, so I expect that the 120 days will push out, but you will have -- after the arraignment, you will begin to see activity in the courtroom in terms of discovery and motions and that sort of thing.

As to when you would see what most people call a trial, the taking of evidence in front of a jury, I can't predict that at this time, but it will be certainly at least 120 days and probably be well beyond that -- beyond the time Judge Crawford makes her referral decision.

Q There'll at least be some court activity by May or June.

GEN. HARTMANN: We expect there to be some, but I -- don't hold me to that. I can't predict that.


Q Sir, would you expect that KSM confession during his CSRT would be admissible given the fact that the CIA has been -- said that it used the waterboarding technique during the interrogation?

GEN. HARTMANN: All of the issues with regard to the admissibility of evidence and the decision of what evidence to produce and to try to bring into the court will be the decision of the prosecutors. That's not my decision. We have the rule of law. We have a Military Commission Act that's been determined by the Congress and the president, supported by the Department of Defense. We will follow the rule of law. We will apply the rule of law. And evidence with regard to the admissibility of evidence will be determined by the prosecution and the defense fighting out and a military judge making that decision.

Q Two questions. What about the destruction of evidence, as in the destruction of the KSM tape. And you used the word "jointly;" were you saying that all six are going to be tried together?

GEN. HARTMANN: Yes. All six are going to be tried together. The -- all six have been recommended for trial together. The chief prosecutor has recommended that all six be tried jointly. That decision remains in the discretion of Judge Crawford as to whether she will refer them jointly, and then that can also be challenged. Even if she should refer them jointly, that can still be challenged.

As to the destruction of evidence, I'm not familiar with the details of that, and again that matter will be decided in the courtroom, among the prosecutors and the defense, in front of the military judge. And they will decide the extent to which any possible destruction of evidence has an impact on these cases.

Q Two questions.

Can you clarify the death penalty issue? Do the sworn charges recommend that these be taken as capital cases? Or is that an option for you and Judge Crawford?

And I had a second question.

GEN. HARTMANN: The answer to both is yes. They recommend that they be referred to trial as a capital case, and Judge Crawford will make the decision as to whether to actually refer them to trial as capital. That's her decision, her sole discretion.

Q I have a question on KSM. Among the more high-profile claims he made was that he killed Wall Street Journal journalist Daniel Pearl with his blessed right hand, I think, was the phrase. Is that one of the charges in the sheet we'll see today?

GEN. HARTMANN: That is not one of the charges in this case.

Q Why not?

GEN. HARTMANN: That is -- the case you have before you is the case that has been brought to me by the chief prosecutor, through his prosecutors. This is the level of evidence they have on these cases. If there is a decision to try somebody else for the Pearl case, that decision will be made later.

Q In terms of the trial, is it fair to assume that it will be completely public? And also in terms of classified evidence, will that also be made public during the course of the trial?

GEN. HARTMANN: That's a good question, and I'll try to answer them both in the same answer.

As to classified, there will be no secret trials. Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to the finder of fact, to the jury, to the military tribunal will be reviewed by the accused, subject to confrontation, subject to cross- examination, subject to challenge, exercising the rights I described to you before.

In terms of the openness of the trial, it is our goal to have the trials as completely open as possible. They're designed for that. We've has more than 100 members of the press down to the commissions before, 30 more recently, and then there were sessions last week where the commissions were present. So we will make every effort to make everything open.

There may be limited circumstances in which classified evidence will be presented. Classified evidence is classified for the purpose of protecting the national security interest and our soldiers, sailors, airmen and Marines in the field, and other operatives. So to the extent that that is necessary, we will apply that standard in the courtroom.

I've been advised by the prosecutors that relatively little amounts of evidence will be classified, but it's still a possibility. And we have rules and procedures, and rules of evidence, in place to deal with that.

Q Do you have concerns that the CIA may not provide the prosecutors with some of the evidence that they extracted while some of these detainees were held in secret prisons, or perhaps waterboarded?

Are you finding it difficult to get that information from the CIA?

GEN. HARTMANN: We're very appreciative of the total interagency effort that has gone on among the law enforcement, intelligence and legal community, and that will be decided in the courtroom when the prosecution decides what evidence it needs to present, as to whether there are any debates or disputes about the availability of the evidence, but I'm not aware of any at this time.

Q How many of these detainees actually have lawyers at this point in time, military or civilian?

GEN. HARTMANN: Of all the detainees?

Q Of the six that were -- (off mike).

GEN. HARTMANN: Of the six, the -- effective today with the swearing of charges, they will be entitled to a detailed military counsel, so that'll occur after today.

Q Can you tell us, was any of the information that was derived from aggressive -- from aggressive interrogations of either KSM or any of the other five defendants used in preferring these charges?

GEN. HARTMANN: I don't know the answer to that question. The prosecutors will make a determination about what evidence they are going to produce in the case in chief. I haven't seen the files yet, and they will -- that will identify to us what evidence is used. But let me be clear: We are a nation of law and not of men. And the question of what evidence it will be admitted, whether waterboarding or otherwise, will be decided in the courts, in front of a judge, after it's fought out between the defense and the prosecution in these cases. That's the rule of law, that's the procedure that Congress has provided to us, and that's what we will use to finally answer these questions.

Q But just based -- excuse me, a follow-up. But just based on your own legal expertise, is that kind of evidence normally permissible against the defendant if it's -- if it's achieved through duress?

GEN. HARTMANN: Well, I'll answer the same question. It's not -- this issue is not based upon my legal experience. This issue is based upon the rule of law. And the military judge will decide if this evidence is going to be admitted. That's the procedure we have set up. That's the American standard of justice, that the court decides, the judge decides.

And so we're very proud of the system that we've set up with all the rights we've defined here; that the accused will have the opportunity to have his day in court and to challenge these things to the extent they're even presented. I can't predict that anything like that will be presented, but to the extent it is, it will be in open court.

Q And a technical question, just a very quick technical question, please. Is the appeal process in a capital case like this automatic, as it is in some civilian courts?

GEN. HARTMANN: That's an excellent question. In this process, unlike --

Q Finally. Two out of three. (Laughter).

GEN. HARTMANN: In this process -- and it's quite a unique process -- if the accused is found guilty of anything, he gets an automatic right of appeal through the Court of Military Commission Review, very similar to the military process but very dissimilar to any other process. It's an extra right for the accused in this case.

And in addition, let me say this. Before he even gets to that, his sentence and the charges would again be reviewed by the convening authority; again, another right that doesn't exist anywhere on Earth except in the military system.

So it's an extraordinary set of rights that we're providing to the accused. And just so you know, at Nuremberg there were no rights of appeal.

Q Just to be clear about the admissibility of some of this evidence. You don't take that into account in your looking at the charges, nor does Judge Crawford?

GEN. HARTMANN: We take that into account in determining whether there's probable cause to proceed, whether there's probable cause or reasonable cause to believe that the accused committed these offenses and if there's jurisdiction. But we have to look at the files before we make any determination.

Q But you will -- excuse me, you will make a decision on the admissibility of that particular evidence?

GEN. HARTMANN: We'll make a decision as to whether we think the evidence is admissible or not.

Q Well, I want to follow up on -- (off mike) -- now I'm really confused. But let me ask you first, in the -- you speak of rule of law. Is there anything in your law or procedure for these matters that allows you to compel the intelligence community on discovery? Do you only ask them or can you compel them for full discovery?

And I'm now confused about the second part of what you just said. When you decide, and Judge Crawford, on the admissibility of the evidence in the charges preferred to you, do you have information on how this evidence came into being?

GEN. HARTMANN: As to your first question, I have very little power to compel anyone to do anything. So I'm -- we are not in the position to compel any other government agency to produce information.

As to the general question about Judge Crawford's role, my point is that we will evaluate the evidence that comes to us and review it to determine if there's probable cause. I don't know the source of the information that's coming to us. I don't know what that information is. So once we see that information we will evaluate it and apply a legal standard to determine whether there's probable cause to proceed. And a variety of factors is used in making that evaluation.

Judge Crawford has 15 years on the bench as -- on the Court of Appeals of the Armed Forces. She was the general counsel to the Army and also the DOD IG, so she has a great deal of background in terms of evaluating these things. And that's how we'll proceed. And I will do a similar review before it gets to her.

Q So, to be clear, in fact the military process here -- you basically have to take whatever the intelligence community tells you at face value. You have no independent means of discovery on the U.S. intelligence community.

GEN. HARTMANN: Well, we receive -- whatever evidence we receive, we receive it from the various communities, and the law enforcement, intelligence community, and we use that evidence and proceed with the evidence that's been provided. It's been a very cooperative effort.

Q And could I just also ask you one -- it can't, you know, sort of escape notice. You're standing here in the Pentagon announcing charges against the men believed to be responsible for the 9/11 attacks, including on this building that morning. Just wondering your thoughts as a general officer in the United States military; it must be a fairly compelling experience for you.

GEN. HARTMANN: I'm glad to be an American, proud to be an officer in the United States Air Force in the military, and we are going to move the process forward.

It's our obligation to move the process forward, to give these people their rights. We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield and I think we'll all agree are national treasures.

So thank you for asking that question.

Q Where were you on the morning of 9/11?

GEN. HARTMANN: I was working in a civilian company. I'm recalled to active duty.

Q Sir, can I ask a question and then a follow-up on Guy's question. There's currently not a facility on Guantanamo to actually have the death penalty. Can you talk to whether -- if the death penalty actually occurs, whether a facility will be constructed at Guantanamo, if someone will be brought back to the United States to do that? And the follow-up is, on the classified evidence, you said that the defense will have all the opportunity to challenge, to review. In prior proceedings that has only been done through the Offices of Military Counsel, but the defendant himself has not been to look at it, neither -- or nor his civilian attorney if he hires one. Is there a change there? Is actually the defendant himself or a civilian attorney allowed now to take a look at that during the procedure?

GEN. HARTMANN: Let me answer the first one. The -- as regard to the death penalty, we're a long way from determining for even focusing on this press conference procedures with regard to the death penalty. First of all, Judge Crawford has to make a decision that she will refer some or all of them as death eligible. Following that, at least 12 jury members, 12 tribunal members must conclude unanimously that the accused committed the offense. Following that, they must evaluate from a sentencing point of view that he has committed one of the aggravating factors that are listed in the military commissions manual, unanimously. And then they must unanimously agree on the sentence. Following that, Judge Crawford will again review the case file, as I mentioned before, tremendously helpful rights of the accused to determine if she agrees that the death penalty is the appropriate penalty.

Then the case goes through the Court of Military Commission Review, the D.C. Court of Appeals and potentially to the Supreme Court. So we are a long way from determining the details of the death penalty, and when that time comes, if it should ever come at all, we will follow the law at that time and the procedures that are in place at that time.

As to your other question, with regard to the classified evidence, the rule is that the accused will get to see every piece of evidence that goes to the finder of fact, every piece of evidence that goes to the finder of fact.

Q One last procedural one. Could I follow up on Jim's question about appeals?

GEN. HARTMANN: Yeah, sure.

Q There are procedures in the military -- in the law that allows some appeal to go to the civilian court, the D.C Court of Appeals. Can you define what gets to go to them, and if a finding of guilt is able to be appealed eventually to civilian courts?

Or is that only through the military courts?


In this process, they all go through the Court of Military Commission Review first, and then to the D.C. Court of Appeals.

Q So there is an eventual possible appeal to the civilian courts.

GEN. HARTMANN: Yes, absolutely, absolutely.

Q To what extent did the White House Office of Legal Counsel review any of these charges before this morning? Did they suggest any tinkering? And did they suggest capital --

GEN. HARTMANN: They reviewed it not at all and made none of those suggestions, because they reviewed it not at all.

Q One of the problems in the previous commission hearings down at Guantanamo is that some of the defendants did not have the right to call their own witnesses. Are you saying it will be different in these cases, and that if they call witnesses from overseas, for example, does that mean the U.S. government will the pick them up, pay for them and bring them to the court? How does that work?

GEN. HARTMANN: They have the right to call witnesses, including expert witnesses. To the extent that they're available at Guantanamo, it's a little easier. To the extent that they're somewhere else in the world, we would, subject to the judge's direction, make the appropriate effort to obtain them, to the extent that they're available.

Those are factors that apply. Also the judge has to decide if they're material and relevant to the case. So the judge will make a determination, once the case begins, as to whether a witness is material, relevant and whether the witness should be available. Or the witness can be made available by remote means, by deposition, by video, by phone.

Q So it's conceivable that one of these defendants could call Osama bin Laden as a witness.

GEN. HARTMANN: I suppose. It's conceivable.

Q General, along those lines, has there been any thought about charging Osama bin Laden at military commission, even though he is not in custody?

GEN. HARTMANN: Not that I'm aware of.

Q General, you have spent a lot of time describing the rights that are available in Guantanamo. And much of what you've described parallels the American civilian system, and you've made that point.

This morning, obviously this case is going to be scrutinized all over the world. What is your explanation of why the United States is charging these people in a military system, rather than in the American civilian system?

GEN. HARTMANN: Fundamentally it's because the president of the United States and the Congress of the United States created the Military Commission Act and determined that that was the appropriate place to proceed with these people.

The military commissions are not unique to this process. They existed under General George Washington, under General Andrew Jackson, Winfield Scott. They were used following the Lincoln assassination for the conspirators of the Lincoln assassination, and they were used extensively following World War II.

These processes that we have before the military commissions in many ways parallel the military justice system which, I think, is very well regarded by the defense community as giving tremendous rights to defense. In our case, we have to make some adjustments for national security, for pretrial rights, speedy trial and so forth, because of the nature of the global war on terror, which has extended for some time and is continuing.

So that's why there have been some adjustments in this system that are slightly different from the military system. And the president and the Congress worked together to create the Military Commission Act, and that's why we're bringing these cases today for military commission.

MR. WHITMAN: We've got time for maybe one or two more.

Q Can you tell us the background of the members of the commission? Have any been a part of this process before? Have they done any ARBs and have they done CSRTs? Where are they coming from?

And I think you mentioned that it takes a unanimous 12 votes for the death penalty to be confirmed. Is there a time in between the commission judgment and the impaneling of the sentencing panel?

GEN. HARTMANN: No, the panel has not been -- Judge Crawford would refer the case to a particular panel at the time she makes a referral decision. So those people have not been designated yet, and they haven't gotten the case. But she chooses them based upon their age, education, experience, training and judicial temperament, after reviewing their records.

I didn't catch the second question.

Q I think you said there was a 12-person panel that carries out the sentence or confirms the sentence.

GEN. HARTMANN: There's a 12-person panel that we would -- in the civilian world you'd call a jury.

Q So they are the ones that in turn confirm the death penalty.

GEN. HARTMANN: They're the ones that will make the sentencing decision. They are the sentencing authority in the first case, and then it is reviewed by Judge Crawford and subject to appeal, et cetera. But they are the ones, just like in any other jury, that make the sentencing decision.

Q And what is their make-up?

GEN. HARTMANN: We -- it'll be the same as the --

Q What available pool do they come from?

GEN. HARTMANN: They are appointed -- they are nominated by the services. They are -- there's a large pool of officers nominated by the services, and that's the pool that we draw from.

Q Why did you decide to try this group together? And why are you doing it right now?

GEN. HARTMANN: The decision to try them together or the recommendation to try them together was made by the chief prosecutor, and he would have evaluated the commonality of fact, evidence, charging, the fairness and the administrative burdens of trying the cases separately and the impact on the victims, among many factors. I don't know specifically what factors he used. And we're trying them now because the prosecution has sworn the case and believes it's ready to proceed to trial.

Q Will there be television cameras permitted inside the hearing room during this? Will it be made that public?

GEN. HARTMANN: It will not be -- there will not be television cameras in this military commission process. There are -- in the military process and in federal courts, there is no provision for televising of proceedings, so we will not televise the proceedings.

Q Will 9/11 families be able to listen to the proceedings, or --

GEN. HARTMANN: We expect -- and we're working on process whereby we would -- consistent with the Moussaoui practice, which was an extraordinary practice, to bring some video back to the families, so that they can view that in a safe environment.

Q JAG -- (inaudible) --

MR. WHITMAN: All right. We've got to bring it to an end now. Thank you, though.

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