Updated 02 May 2003

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Presenter: Senior Defense Official
Friday, May 2, 2003 - 1:00 p.m. EDT

Background Briefing on the Release of Military Commission Instructions

(Background briefing on the release of military commission instructions.)


     Staff:  Good afternoon, and thank you for joining us this afternoon.  The general counsel of the Department of Defense has issued eight military commission instructions that would be necessary to conduct possible future military commissions.  I believe all of you have been provided with a copy of those.  The issuing of these instructions is another step DoD has taken towards being prepared to conduct full and fair military commissions, should the president make a determination that commissions are necessary.


     Today, we have with us three senior defense officials and military officials.  And we are on background, and they can be referred to as a senior defense official and two military officials. And here are their bona fides. 




     I'll put this over on the table.  If anyone needs table -- or, titles and stuff later on, it will be sitting over there for you.


     So, let's go ahead and get started.


     Defense Official:  Good afternoon.  My two colleagues and I are from the Office of General Counsel, Department of Defense.  And we're here to tell you about the eight military commission instructions that the general counsel of the Department of the Defense has issued.  These instructions were prepared as part of the process to be ready in case the president decides that it's appropriate to try any captured enemy combatants by military commission.


     We previously issued a draft instruction on Crimes and Elements that we had circulated for public comment, and one of the eight instructions, the Crimes and Elements instructions, is now final.


     Just to give you some background, the president issued a military order on military commissions back in November of 2001.  Then in March of 2002, the secretary of Defense issued Military Commission Order No. 1, which laid out the basic procedures for holding military commissions.


     Today, pursuant to Military Commission Order No. 1, the general counsel of the Department of Defense is issuing these eight instructions that further facilitate the conduct of military commissions by, for example, defining the substantive crimes that military commissions can try.  The eight instructions that we're handing out today are the complete set of instructions issued to date.


     In developing these implementing instructions, we sought and received input from various experts in and outside the government, and we feel that a great deal of advice, thought and hard work has gone into the drafting and issuing of these instructions, and we're confident that they will provide for full and fair trials before military commissions.


     I'd like to turn the discussion over to my colleague from the General Counsel's Office, who's really our subject matter expert on these military commission instructions, and ask him to discuss a little bit more about the substance of the instructions.


     Defense Official:  Thank you.  And I too would like to thank you all for coming and reiterate that a lot of hard work and effort went into these instructions, both by people here in the building that were involved in drafting but also, as was just mentioned, a number of experts inside and outside the government.  They deserve a lot of thanks for many hours spent considering some issues associated with these instructions, and we very much appreciate the assistance we received.


     I was going to say I hope you've had a chance to read through the instructions, but I was in the room just a minute ago when they were being brought out here, and I know, if someone has read through them all completely, then I don't think I want your questions anyway.


     But that said, if you have had a chance to peruse them, you're at least familiar with the instructions.  And one of them has already, at an earlier stage, in draft form, been briefed.


     At that -- with that, I would just state that we believe these instructions will indeed facilitate full and fair trials by military commission, and with that, open it up to your questions.


     Q:  Could you -- I have two questions.  At a general level, could you explain to us the differences that you incorporated between the draft that you issued to us a little while ago and this one, and point out where those changes are?


     And then I'm also looking at 5-3 [Military Commission Intructions No. 5, page 3], where it talks about how civilian defense counsel can get secret clearances or use secret clearances.  And I'm wondering if you could explain if that's different from what's been going on within Padilla case.  Is this a different kind of power -- that civilian lawyers will now have access to secret government documents -- and able to form the defenses?


     Defense Official:  Okay.  Sure.  With respect to the first question, I think you were referring then to Commission Instruction No. 2, which is the lengthiest of the instructions in this packet.  But realize there are seven others -- I won't say unrelated, but of completely different sort.  They were not previously released in a draft form.


     Q:  Are these in still drafts, these seven others?


     Defense Official:  No, the seven others are, in fact, finalized instructions.


     In terms of the changes made mostly, you'll -- we received -- I should comment, I suppose, that we received quite a number of comments, very useful comments, from various officials, from other governments, nongovernmental organizations, and private groups and individuals in and outside of government.  It ended up being a very useful process, and allowed us to refine a lot of the language in Military Commission Instruction No. 2.


     When I look at substantive changes, it's tough to identify a large number that are -- it depends what you call substantive, I suppose.  And that's probably good news in that they are designed to reflect accurately the current state of customary international law, and that oughtn't be changing too rapidly.  Fortunately, it didn't.


     What we'll find, though, is a number of wording changes throughout.  It would be impossible to go through all the language clarification.  There was some clarity in the "Wrongfulness and Defenses" section, where it caused a little bit of confusion in the earlier draft and appeared as if there was a burden shifting, and we clarified that the burden is always on the prosecution to prove guilty beyond a reasonable doubt.  A few of the other definitions had some wording changes with extra clarification.


     We did add two offenses that were not in the earlier draft, and I'm trying to turn to them now to be able to identify them for you. One is the crime of torture, that you'll find on your Page 2-8 [Military Commission Instructions No. 2, page 8], Number 11.  And there's also a crime of causing serious injury, on Page 2-9 [Military Commission Instructions No. 2, page 9].


     We also restructured the document slightly so as to make clearer the two different sections under Paragraph 6, that begins on Page 2-4 [Military Commission Instructions No. 2, page 4].: A, "Substantive Offenses," being war crimes, and then the subsequent section being "Other crimes triable by military commission" -- "Other offenses triable by military commission," starting on 2-12 [Military Commission Instructions No. 2, page 12].


     That's really, I think, in a nutshell the majority of the substantive changes.


     Your other question, I believe, was on Instruction No. 5.


     Q:  Yeah, it was -- it's on, I think, page -- it's 5-3 [Military Commission Instructions No. 5 , page 3]., and it talks about how they can have civilian defense counsel, and the civilian defense counsels will either have -- can have a secret clearance or can get one if they pass the background check.  And I'm wondering -- I don't know enough about the other situation to know; is this a different kind of power that they'll be able to have, or is this the same thing that civilian defense counsel can do right now in the Padilla case?


     Defense Official:  I would say we have a new judge advocate spokesman, too, that we've brought on board, and I don't know if you can look into the details of that and compare it to the Padilla case. I don't know of any differences.


     Defense Official:  Well, the primary difference is that the Padilla case involves what's called a habeas corpus petition that has been filed in Padilla's behalf.  That's not a criminal proceeding against Padilla; it's a legal claim that Padilla is making that he shouldn't be detained.  So in habeas corpus proceedings, in general you would not have a right to have counsel for the petitioner have access to classified information.


     Q:  But if that were to go to the courts, however, then his counsel would have access to all of that?  I'm just trying to find out if there's a difference here in this structure than there is the standard.


     Defense Official:  I took your question to be the technical means, how they would get the clearance.


     Q:  No, no, no.  I'm trying to figure out if there's some difference.  I'm trying to understand this situation as it differs or is the same as the stuff that we're already familiar with.


     Defense Official:  Well, for instance --


     Q:  So it was a "compare and contrast" question.


     Defense Official:  I think that the point of your question, what you're getting at is will a defense counsel -- a civilian defense counsel in this case, if they have the "secret" clearance, have access to secret information.


     Q:  And it says here yes, they do.  And my question is, is that different from the other sorts of legal situations that we're dealing with in the global war on terrorism, and I offered for you, say, the Padilla case, one I know that there is some question.  Obviously, my legal background is minimal.  (Laughs.)  I'm hoping that you can explain if that's different to us now.  And I'll stop talking.


     Defense Official:  In criminal cases in federal court involving classified information, ordinarily the defense counsel would seek to have a clearance so that he or she could have access to classified information.  The difference in the military commission proceeding is that, first of all, as a prerequisite to be a defense counsel, you'd have to be eligible to have a "secret" clearance.  And then secondly, the defendant in a military commission will always have a military defense counsel, a JAG, who will have access to all classified information.  The civilian defense counsel may or may not have access to all classified information, depending on the level and sensitivity of the information.


     Q:  Is that pretty much how the World Trade Center trial worked?


     Defense Official:  In that they had to get clearances on the defense counsel side.  Similarly here.  I guess the main difference, as was just stated, it's kind of a prerequisite from the outset, before the trial even starts, that we assume there will be some need for a classification capability.  So it's earlier on in the process so that we don't have to stop a trial, slow it down in the middle, and then get the appropriate clearances.


     Q:  But I noticed here in 4-5 [Military Commission Instructions No. 4, page 5] , you do say the fact that you as a civilian defense counsel have been granted membership in the pool of available counsel and you've entered a case, does not guarantee your presence at closed commission proceedings or access to information.


     Does that mean whether or not you qualify for this security clearance, you can still -- there still can be circumstances you foresee in which there's a closed session, in which the civilian attorney might not be allowed to participate?


     Defense Official:  I believe there could be.  I think they'd be few and far between.  This is based -- if you look at Military Commission Order No. 1, that Secretary Rumsfeld issued in March of last year, a secret clearance level is what's required for a civilian defense counsel.  To raise that level would preclude a much greater swath of the defense counsel, the potential defense counsel, out there.


     And so what this is a recognition of is the fact that there may be something more highly classified than could be seen by someone with a secret clearance level.  And in those instances, perhaps civilian counsel may have a high enough clearance to be able to get access, perhaps not.  We're not going to prohibit them from being civilian defense counsel, though, just because they can't get the higher clearance.  But based on that, there's an assumption that -- this indicates that there is that possibility that there might be some session they can't attend.  There will never, however, be a session that won't be attended by the accused military defense counsel.  So the accused will always have a lawyer in every session.


     Q:  And one other thing.  Another qualification to be a civilian defense attorney, despite the fact that all those people that will be tried by the commissions, if any, will be foreign nationals, the defense counsel have to be American citizens.  Is that correct?  (Pause.)  And there's no exception to that?


     Defense Official:  No, not in -- in fact, that again flows from Military Commission Order No. 1.  So these instructions are guidance -- it's subordinate to that military commission order.




     Q:  Is this procedure open, public, from beginning to end, with, as in any court, occasional excerptions?  But is the idea that everything from the charges and who's charged to the imposition of the sentence would all be public?


     Defense Official:  That is the assumption.  But as you just heard, when we're quoting closed proceedings, that suggests that that's not an open one, and in fact that's when they would not be open.  The Military Commission Order No. 1, again, addresses that and says that they will be open -- "to the maximum extent practicable," I believe, is the term.


     Q:  Would that be the case with the -- if there are detainees in Guantanamo who are charged, or would they just automatically be closed because you won't disclose any information at that point?


     Defense Official:  I don't think anything would automatically be closed.  I think it will take very seriously that they'll be open to the maximum extent practicable.  So it would only be if there was a need associated with protected information, which is defined in the order, that they would be closed.




     Q:  Yeah.  For the benefit of my slow mind, can you remind us what the difference between court martial and military commission is, basically, and what are the main differences?


     Defense Official:  Well, courts martial have historically been used primarily for good order and discipline of our armed forces. Military commissions have been used for perhaps a wider variety of things.  But in every case of a war crimes trial, violation of the laws of war, historically the United States has used military commissions.


     Military commissions -- the manual for courts martial gives detailed procedures and rules for courts martial, which occur every  day -- maybe "every day" is too much of a stretch -- but frequently in the armed forces of the United States.  And that's an up-and-running system that works during peacetime.  Military commissions are usually associated with times of armed conflict.


     Q:  And what are the main differences, in terms of structures and rules, between the two of them?


     Defense Official:  Well, there's an awful lot of details.  It would be tough to lay them all out right now.  I think that the military commission order and the president's military order are drafted in such a way as to capitalize on the flexibility needed because of the increased need to protect intelligence information that occurs during an armed conflict, and a recognition that the kinds of evidence that one might find on a battlefield is very different than the normal situation our law enforcement officers have when they're getting evidence in peacetime.  It's tough to get a warrant for a case.  So in that respect, it allows the panel members more flexibility in determining what evidence has probative value and may be admitted.  Similar evidentiary rules to our other international tribunals, like the Yugoslav tribunal at The Hague, or the Rwanda tribunal.  That's one difference.


     The other primary difference, I think, would be that there's three to seven commission panel members, the presiding officer acting as one of the panel members but being a military judge in terms of experience; whereas a court martial has, in the case of a general court martial, five or more members and then a military judge who is separate from the fact-finding panel of members.


     Q:  Have any of these positions on, appointing authority, the legal advisor, the prosecutor, been determined yet?  And if not, how close is the secretary to naming some of these individuals?


     Defense Official:  None of those positions have been formally filled as of right now.  There are people under consideration, in some cases people serving in acting capacities, but no one has been formally designated yet.


     Q:  Can you tell us who the individuals are in acting capacities?


     Defense Official:  We'll get back to you on that. [Names of individuals serving in acting capacities are clear for public release at this time.] 


     Q:  Beyond that, is there anything more that needs to be done, whether judicial, administrative point of view, in terms of being prepared to carry out these military commissions, or is this it?  Is this essentially the apparatus in place now to go ahead with such things if the decision is made?


     Defense Official:  Well, I would say that there are a number of smaller, logistical-type steps that need to take place, as well as   just, you know, getting military commission members selected, and arranging the travel, and ensuring that all the security procedures are in place, you know; but pretty much, you know, we are ready to go when the time is right.


     Q:  I have a question.  Do these instructions constitute the legal code for the commission?  Is this the law -- when somebody's being tried before a commission, is this the law that decides the commission, like the legal code?


     Defense Official:  I'd say that this, coupled with the president's military order and Military Commission Order No. 1, signed by Secretary Rumsfeld, provide regulations for how to conduct commissions, yes.


     Q:  But the law that a defendants' charged with and such, that's what this is, right?


     Defense Official:  Well, that would be Military Commission Instruction No. 1, which is not a codification of the law.  It's simply a(n) articulation -- or, excuse me -- Military Commission Instruction No. 2, which is not a codification of the law, but it's simply an articulation, a distillation, if you will, of customary international law of armed conflict, which is the basis of the substantive law that military commissions would use in this instance.


     Q:  Also, where are the commissions going to be held?  And about how many personnel do you think you're going to have to give up to serve on the commission?


     Defense Official:  I think those are both decisions that are yet to be made.  That's one of the benefits of the flexibility of commissions and the ability to constitute them quickly, if needed; that those decisions can be made in different directions or changed, and we could still move forward.


     Q:  Do you expect any reservists to have to be called up to fulfill these -- the need for being a commissioner?  Is that what they're called, a commissioner?


     Defense Official:  A military commission member.


     Q:  Do you expect the Reserves will be needed?


     Defense Official:  Reservists -- National Guards member, as well as active duty members, are eligible to serve on military commissions.  And, you know, we'll look to the services to determine who they want to nominate to serve on military commissions.  You know, I doubt that, at least in the short term, that there would be such a   great number of commissions that you would have to call up reservists to serve on commissions, but that would be an option.


     Staff:  This lady in the blue is next.


     Q:  How far has the president progressed in determining likely candidates for military commissions on Guantanamo Bay?  And what's your understanding as to how soon the military commissions will start?


     Defense Official:  Well, we have been reviewing the different cases for some time, and we obviously have some thoughts about who would be appropriate to bring before a military commission, but no final decisions have been made yet.


     Q:  Any numbers as to how many at this stage?


     Defense Official:  I really couldn't -- really wouldn't want to speculate about that just because of the many factors that would be involved in selecting someone to go before a military commission.


     As I said, we are pretty much ready to begin them when the time is right.  I don't want to -- I can't really give you a more specific time frame because I, personally, just don't know, you know, when they will begin.  But we are ready to start them, once all the pieces fall into place.


     Defense Official:  Just to follow up on that real quick, so that you understand what is being said, and that is that when we talk about the time being right, realize under the president's military order, we don't have jurisdiction over anyone to try them by military commission until the president designates them as being -- (aside) -- what's the term?


     Defense Official:  Subject to the order.


     Defense Official:  Subject -- thank you -- subject to his order.  So until that happens, as a technical matter, we don't have jurisdiction.  So that's what we would be waiting for.


     Q:  Does it mean then, though, that you've already had your thoughts about -- as to who might be likely candidates?  Have you actually narrowed down who you believe should go before a military commission, and now you're just -- and you've got the commission process in place, and now you're just waiting for the president's order to make them subject toward it?  Is that the way it is?


     Defense Official:  I think that might assume a little too much.


     Q:  Just because -- because why?  You haven't actually narrowed down who should go before the commission?


     Defense Official:  Well, because that's -- when you say "you," it's a question of whose choice that it is.


     Q:  Has it been narrowed down as to who should go before the commissions, has it been narrowed down as to who is going to go before a military commission?


     Defense Official:  I think those things are still being considered and looked at.  And just to step on that, to give you a little bit of an overall idea of the entire process, first, the president does have to determine someone is subject to his order, which just means there's jurisdiction.  Once he does that, it doesn't necessarily mean that person is going to go before the commission.  There's an appointing authority who will then refer charges to the commission.  So it is a two-step process.  And we really don't want to mix those up.  So there's a few decisions, and there's still some more consideration, I think, that has to go on before we get to that point.


     Q:  Can you elaborate on the appointing authority?  Who's that and what does he --


     Defense Official:  Well, right now, under Military Commission Order No. 1 that came out in March of last year, there's an appointing authority who is responsible for coordinating and overseeing the entire military commission process.  The appointing authority, as of now, is the secretary of Defense, and he may delegate that responsibility, if he decides to do that.


     Q:  If I could follow up --


     Defense Official:  Sure.


     Q:  -- just on page 2 - 3 it said -- in the definition, it says  enemy -- I presume it's talking about people who may go before a commission, and it says "enemy" is blah, blah, blah, someone who's going to engage in conflict or is preparing to attack the U.S.  So who would decide -- I mean, if the person hasn't been tried before, so they're not convicted, I mean, who decides that they've -- and under what burden of proof that they've been preparing to attack the U.S.?


     Defense Official:  I think that your -- the predicate to your question is wrong, in that you're assuming that that's who would be tried.  And in fact this definition of "enemy" is only one that refers to elements for other crimes that you find subsequently in that instruction.  That -- there would be definitions -- there would be the elements that are used to determine whether someone's guilty of another offense.  This is not a definition of who would be tried by military commission.


     Defense Official:  And the lady in the white's been patiently waiting --


     Q:  And how far is this going to apply to people being detained now in Iraq?  And you said you had other nations consulting you.  Do you have somebody from the United Nations consulting you on this?


     Defense Official:  We haven't really been, unless we've specifically spoken to them about it and asked if they minded.  We have got in consultations from -- some privately, some publicly.  Most who have wanted to make their consultations known have done so by putting their own comments on the Web or something like that.  So we've really avoided saying exactly who consulted, necessarily, in various areas.


     I forgot the first part of the question.


     Q:  How much of it applies to Iraq?


     Defense Official:  Well, by the order itself and by the president's military order, this does not apply necessarily to Iraq.


     Now when the question was asked earlier about the code, the substantive law that might be applied, you should realize, of course, that the law of war is the law of war; it's not necessarily -- it doesn't change.  It's the international law of armed conflict.  So, one could expect that some of the same crimes that would appear in Military Commission Instruction No. 2 would be the same kind of crimes that you'd find in the -- used by the Yugoslav tribunal or some of the accusations you've been hearing on the news regarding Iraq.


     Defense Official:  And just to be further specific on Iraq, if there were people who met the criteria of the president's military order -- that is, basically, international terrorists who were captured in Iraq -- it is possible that they could also be subject to this process.


     Q:  Will you be holding any of these commissions in Iraq?


     Defense Official:  I think we're starting to mix apples and oranges a little bit.  This order right now is the president is looking at the enemy combatants as he determines met the three criteria he listed in his original order.  And I think it would be premature to start saying, well, it could be to fly to Iraq, or would there be commissions held in Iraq?  I think there's a lot of things being thought of, but I don't think there is anything we could say on that right now.


     Q:  I didn't see anything in here regarding appellate procedures.  Does this mean that the decision of one of these commissions would not be subject to review?


     Defense Official:  The appellate review procedures are dealt with in Military Commission Order No. 1.  These instructions -- if you look at Military Commission Order No. 1, that document delegates to the general counsel the authority to issue supplementary instructions that would facilitate trial by military commission.  It would be tough to -- I mean, it's a little tougher to see how the general counsel for the Department of Defense would necessarily have instructions that would apply to the review authority, which is designated by the secretary himself under the Military Commission Order No. 1.  So that's why you don't see specific -- (Light laughter.) --


     (Cross talk.)


     Q:  Say that again!


     Q:  Yes, two questions about the defense counsel.  There's a very -- there's a blanket rule that the defense attorneys cannot speak to the media about anything regarding the commissions, not just   classified evidence.  What's the rationale for a complete gag order regarding the commissions?


     Defense Official:  Let me, before I forget, restate the thing that confused everyone, and that's simply that these are instructions subordinate to Military Commission Order No. 1.  And that order itself authorizes the general counsel to issue such instructions consistent with the order that he deems necessary to facilitate the conduct of proceedings by commissions.  That doesn't on its face include the appellate procedures, and that's why --


     Q:  Is that the major difference between military commissions to court martials and the federal district court, which are the other two options; that the other two options give right of appeal to the defendant, whereas a military commission doesn't?


     Defense Official:  Well, the military commission order also clarifies that there is, in fact, a review panel and every case will go to that review panel designated by the secretary, and then it's reviewed yet again by the secretary, and then finally by the president unless he delegates it.


     Q:  (Off mike.) -- it doesn't go to a separate appeal person.


     Q:  Defense Official:  They're all the people who decided the person should be there in the first place; the secretary, the president, I mean, who are reviewing the case are the people deemed the individual to be worthy of trial.


     Defense Official:  That's not quite accurate. And I feel bad because I realize there is that question back there.


     Q:  (Off mike.)


     Defense Official:  But just to clarify this one:  No, when the president designates someone as being subject to his order, that is not a decision to try them at all.  In fact, the way his order reads is "if" tried, tried by military commission, it's simply that DOD has cognizance over that person in this war on terrorism.  That is not a decision to try the person.  It's the appointing authority, potentially the secretary or someone delegated by the secretary, who would approve charges and refer the case, and then that appointing authority, if delegated, has no real adjustment authority.  It then goes to the secretary, the review panel and the president.


     Q:  But here's a person who was involved in the decision to try the person, as opposed to an independent review person.


     Q:  Like the federal court -- (Off mike.) -- appeal process.


     Defense Official:  I don't know if that's really a fair statement or not, because wouldn't it be the same thing if the president's order from the outset designated everyone?  Then has he been involved in the decision to try them?  I don't know.  It's an issue of how much of a nexus you draw between the designation and trial.


     Q:  But they're not judges and they're not lawyers, these people that would be reviewing it.  And Rumsfeld makes a frequent public point of the fact that he's not a lawyer.  So how he is supposed to be able to review this legal proceeding to see if it was fair or rightful?


     Defense Official:  Well, at least one of the review panel members has to have experience as a judge.


     Q:  We're talking about on the appeal or on the review of whatever the decision that comes out. You're talking about referring it up to people who don't have legal background.


     Defense Official:  Well, no, the way it works is that you have a military commission proceeding, and if you have a conviction, then it's automatically appealed to something called a review panel, which is a body that would have legal experience.  And the review panel makes a recommendation to the secretary of Defense.


     Q:  So the ultimate decision is to the Secretary of Defense, based on the review panel?  The review panel can't make a decision to overturn a decision by the military commission; it's got to go through the secretary of Defense?


     Defense Official:  Well, actually, it can send it back down for further proceedings or for new proceedings.


     Q:  And to the same commission?


     Defense Official:  Well, based on its instructions.  So it would be a remand, the same as an appellate court would have authority.


     And I feel bad that we've left this question hanging, successfully begged it for --


     Q:  Yeah, just to restate the question.  On page 4-6, it says that the defense team is not permitted to speak to the news media about anything related to the commissions, not just classified evidence or, you know, specific things.  What's the rationale for that blanket rule?


     Defense Official:  Well, I think one answer is we, in fact, have a spokesman that's planned to be the spokesman for all parts of the military commission process.  But I think more importantly, though it's a bit presumptuous to presume what the intent was, necessarily, in each and every one of these, as a practical matter, the same effect is true of the prosecution and the defense in this case.  You'll see an identical provision in the instruction regarding the prosecution.


     And I think the intent there would be that the goal is a full and fair trial by commission.  The goal is not to win public support for either side, necessarily, but to keep the focus of all the litigants on this full and fair trial process, because that's what --


     Q:  What about after --


     Q:  But what about public confidence in the process itself?  I mean, how can you -- how can the international community have confidence in the work that -- you've worked so hard on putting this together.  How can you be sure that the international community isn't just thinking that you're setting up a kangaroo court?  Because the information will all be filtered through one individual, that it will be easy for people to say that this is just a mouthpiece for a process that you know and you believe is something that's legitimate, but how are -- how's the rest of the world supposed to believe that if they don't feel like, you know, the media isn't getting some sort of independent access to it?


     Defense Official:  That's actually where you come in.  As mentioned earlier, it is going to try to be an open and public trial, as long as we can, protecting classified and protected information.  So we're going to rely on you folks to make sure that that word gets out and report on what you see --


     Q:  Does the gag rule extend to after the proceedings are over? So if the guy is convicted, is his defense attorney still restricted from saying anything?


     Defense Official:  I think that's the way I would read the instruction.


     Defense Official:  Right.  But now -- but to further look at what the instruction says, it says that defense personnel may communicate with the news media representatives, blah, blah, blah, only when approved by the appointing authority or the General Counsel, Defense of Defense.  So it is certainly possible and perhaps probable that those kind of contacts would be authorized.


     Q:  The second question I had was, the president's military order -- it precludes any review by the federal judiciary.  That is something that -- or at least claims that this system is not reviewable by the federal judiciary.  To be appointed defense counsel, do you have to agree not to appeal?  Because you can imagine a zealous defense counsel saying, "Well, the president said that, but I'm going to, you know, challenge that claim."  Do they have to agree not to even attempt that sort of review?


     Defense Official:  That -- if you look at Military Commission Instruction 5, dealing with civilian defense counsel, and then 5-B is an affidavit that is an annex to that instruction, and I don't believe anything that you've just described, any of -- prohibition with respect to subsequent proceedings is included in either of those instructions.  So that's a long way of saying no.


     Q:  Okay.


     Q:  What's --


     Staff:  We need to wrap it up.  About two more.


     Q:  What --


     Staff:  Maybe somebody that hasn't had a question.


     Defense Official:  I think the lady in the pink hasn't asked a question.


     Q:  Yeah.  This might be sort of along the same lines as asking exactly who could be tried, in terms of Iraqis.  But is there any -- is there -- it seems like pretty much an enemy is someone who's engaged in armed conflict with the U.S., and "armed conflict" is to be fairly broadly defined.  I'm wondering if there's any way that a U.S. citizen could be tried before a military -- (Off mike.)


     Defense Official:  Well, the answer to that is no, with respect to these commissions that were established by the president's military order of November and Military Commission Order No. 1, because it specifically excludes American citizens from those subject to the president's military order.


     Again, though, we're mixing a bit of apples and oranges.  I just want to clarify that -- perhaps this is the problem of getting something that you can only read through the beginning of.  The "enemy" here is really simply a short way of referencing a definition for "enemy" everywhere it appears in the elements.  That's not who would be tried.  That's how to identify different parties when in fact you are defining one of the war crimes.  Some -- a war crime that might have to take place, you know -- and I unfortunately can't quickly find the spot where "enemy" appears, but it's simply identifying either the object of an attack or the perpetrator of an attack.  That's one of the requirements under the law of war for the crime, that's all.


     Staff:  Okay, and we'll take the last question from this young man.


     Q:  Can I just clarify -- were these instructions written with the detainees from the Afghanistan war and related operations in mind, and not the Iraq war in mind?  For example, the Guantanamo prisoners but not people who have been taken during the Iraqi war -- the Iraq war.


     And can you tell me also, is there a possibility that we're going to be seeing these commissions operating in places outside of the United States?  For example, at Guantanamo or in Iraq.


     Defense Official:  Well, I think the answer to your first question is that these specific instructions are directly subordinate to Military Commission Order No. 1, which in turn, is subordinate to the president's military order that's specifically related to the war on terrorism.  And in that regard, it was not specifically oriented toward Iraq.


     Q:  Or the Iraq prisoners?


     Defense Official:  Well, again, if you --


     Q:  (Off mike.) -- so it must be -- I mean, isn't that the connection you have?


     Defense Official:  Well, certainly, al Qaeda appears prominently in the president's military order, and to the extent that there was someone who was a member of al Qaeda, for instance, then the president's military order would apply.  The president's military order wasn't drafted with Iraq in mind, and neither were these.


     In terms of where the commissions could take place, I think that is one of the aspects of military commissions, and that's the flexibility they have.  Yes, they could take place in any number of places, as could courts martial.  And in fact, courts martial do take place all the time all over the world.  Commissions could, as well.


     Q:  So you're not saying specifically it's going to take place at Guantanamo, but it could take place there?


     Defense Official:  I think there's nothing legally that would preclude that.


     Q:  Just to follow up on that, on the last thing concerning Iraq, is there anything in these -- in the president's order, Rumsfeld's guidelines or these documents -- that would preclude the holding of commissions, trying people in Iraq who had either violated the laws of war, such as by waving a red flag and attack -- a white flag and then attacking U.S. forces or, say, torturing Iraqi people and launching chemical weapons against them?  Is there anything that precludes that?  Or are we -- are we reporters simply barking up the wrong tree by trying -- asking about Iraq?


     Defense Official:  Well, I would cite you to the president's order, Section 2, and Section 2(a) defines individuals subject to this order.  And essentially, there -- it's probably worth just looking at it yourself.  But there are three -- well, that definition there does not include a simple enemy prisoner of war in a conflict with Iraq. It's related to al Qaeda membership and terrorist activities that the subject matter -- that our personal jurisdiction would flow from.


     Defense Official:  But that doesn't mean that you couldn't have a new order that would cover other areas.


     Staff:  Okay, thank you very much.



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