Updated 23 May 2003

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Presenter: Army Colonel Frederic Borch, Acting Chief Prosecutor
Thursday, May 22, 2003 - 2:00 p.m. EDT

Briefing on Military Commissions

(Also participating:  Marine Lieutenant Colonel William Lietzau, Outgoing Acting Chief Prosecutor; Air Force Colonel Will A. Gunn, Acting Chief Defense Counsel; and Air Force Major John Smith, Spokesman, Military Commissions Judge Advocate.)

Staff: Let me just introduce you to our briefers today. Before I do that, let me remind everybody that the president has not yet assigned any individual to be tried by a military commission. But as part of proper, prudent, planning, should it become necessary to hold a military commission in the future, the Department of Defense today is announcing the names of the acting chief prosecutor and acting chief defense counsel for the Office of Military Commissions.

You'll be talking to each of them separately today in back-to- back briefings. So this one will end at 2:30, and then the chief defense counsel will be here to talk to you for about 30 minutes.

Also during this briefing, you've met before, for those of you who attended these, Lieutenant Colonel Lietzau, who is going to be departing later on this summer. And he is the outgoing acting chief prosecutor. Colonel Fred Borch, in the center, is the incoming acting chief prosecutor. And, of course, I think you all know Major Smith from our other briefings also here, the spokesman for the commission.

So with that, we'll go ahead and get started. But I will end this first briefing right at 2:30 and then go into the next one.

Sir, if you like, you can give them an indication of --

Borch: Yeah, why don't you start, Colonel Lietzau?

Lietzau: This part we hadn't planned.

By way of introduction, my role, besides being an outgoing acting chief prosecutor, if you will, was really the process portion of setting up military commissions. Part of that, obviously, being setting up a Prosecution Office, so that in fact, the commissions could start moving forward.

In that regard, I've known that I would be leaving this summer and that someone would be coming in. And in this case, it's Colonel Borch. But I think we're here able to answer all your questions regarding the rules, the instructions that have come up before -- we've talked about some of those before; and the intentions with respect to setting up the office that Colonel Borch is taking charge of.

Sir, do you want to take it from there?

Borch: Yeah. And I think you know that the Office of Military Commissions, which includes the acting chief prosecutor, means that I'm in charge of organizing all the prosecutions that might occur, and, of course, also providing legal advice to the general counsel in the area of military commissions. So that's my principal function as the acting chief prosecutor.

But again, any questions that you may have, I'd be more than welcome to take them.

Q: Colonel, are all of the prosecutors that you plan to have in your office going to be from the military? Will you draw some people from outside the military as prosecutors, possibly? And do you have an idea of how many you might need?

Borch: Well, we're putting together our prosecution teams right now. And at the moment, everybody that we have in our office wears a uniform. I have Army, Navy, Air Force, Coast Guard, Marine. But you probably remember that it's a requirement that the prosecutors be military members. So certainly, we want to draw on the great experience that all the services have in the area, but all the people, at least at this time, are going to be in uniforms; that's what's required to be a prosecutor.

Lietzau: Just one caveat to add to that. If you remember also in Military Commission Order No. 1 that Secretary Rumsfeld signed about a year ago, it also does have a provision that would allow for trial attorneys who have been made available by the attorney general to also participate in prosecution. So, that's a possibility under the current regulations.

Borch: Yes?

Q: Can you tell me how you go about selecting who will be the defendants after the president says who is eligible of the population -- who might come to trial?

And some critics have said that the rules that have been presented by the Pentagon greatly favor the prosecution and restrict the defense, not only the military defense attorney, but potential civilian defense attorneys. Do you think the rules are greatly favoring the prosecution?

Borch: Well, let me answer your second question first, since you've given me two questions here. We have been very careful in this process to do everything to guarantee a fair trial -- full and fair trial. And I'm like every other American. Everyone who's at a prosecution ought to get a fair trial. And I'm convinced that's exactly what's going to happen at the military commission. So, I don't agree at all that the proceedings are not going to be fair and not going to be an opportunity for zealous defense representation. And I know that that's exactly what Colonel Will Gunn, who's the acting chief defense counsel, is planning, so I simply don't accept that statement at all.

Now back to your first question, which is about how are we going to select cases. Look, the president makes the decision as to whether or not anyone is subject to the jurisdiction of the military commission. President Bush hasn't done that yet. And until such time, I really can't tell you how we're going to select cases. All I can tell you is we're getting ready, as prosecutors, for the appropriate time when the president makes the decision.

Q: And a follow-up.

Smith: And if I could just add on to that a little bit, some of the other things that you will see during commission process is you'll find a finding of guilt beyond a reasonable doubt; you'll see the presumption of innocence; you're going to see no adverse inference if an accused decides to remain silent at trial; you'll see a free defense counsel participating at an adversarial proceeding. So, many of the same types of safeguards and traditional American jurisprudence you see will also be available in military commissions.

Q: Thank you.

Let me just follow up. Have you guys drawn up a list of potential defendants in this?

Borch: Well, I can tell you we're looking at a number of cases and we haven't yet made any decisions, but we are looking at particular cases. I can tell you that every single case that merits prosecution, that we're told to prosecute, we will prosecute.

But to echo what Major Smith said, the presumption of innocence is absolutely absolute in the military commission process, and, of course, the right to a fair trial and defense representation. So I'd just echo what he said.

Smith: Yes, sir?

Q: You talked about the similarities between the military process and the traditional civil process. Can you tell us where the differences lie between this way and a civilian court?

Borch: Well, the fundamental difference, of course, is that military commissions are about prosecuting violations of the law of war. That's the principal reason for military commissions, and historically this is what we've always done as Americans. You probably know that after World War II, we had hundreds of military commissions hearing cases involving war crimes committed during Word War II. But again, it's restricted only to violations, really, of the law of war, war crimes, and again, in the context here, has to be terrorist related. We're talking about terrorism here and not just any particular war crime or violation of the law of war. So that's the major difference. Of course, civilian courts are about civilian criminal offenses, and this is entirely different here. These are offenses that occur in the context of armed conflict, which I think also should explain to you why it's a military commission and not some other kind of commission.

Q: What about procedurally?

Smith: I think you could add to Colonel Borch's answer on the procedural side that these commissions are designed with a view toward offenses that happen during war. As well as the subject matter being war crimes, these are offenses that occur during an armed conflict, evidence is taken during an armed conflict, and in fact at this point in time, if we were to have commissions now, the commissions would be taking place during an armed conflict. Those are the kinds of things that create special national security concerns, and commissions and the process surrounding commissions was designed to be able to accommodate those special circumstances of an ongoing armed conflict.

Q: Colonel, bearing in mind those special concerns, could you just explain some of the challenge you're going to be facing? What are some of the difficulties that you see ahead as you try to get a prosecution for some of these people? Outline some of the difficulties you might be facing.

Borch: In a particular case, challenges we might see, or in general?

Q: In general. Or anything that strikes you.

Borch: Well, I've had a lot of experience doing criminal law. I've spent most of my career as a prosecutor. Of course, you may know, if you've seen my bio, I've come from being a professor of international law. I would say, based on my background and experience, I think the military commissions are going to be very similar to all the same challenges that any prosecutor faces in court. And that is, making sure, one, that the proceedings are fair, because that's a major goal for the prosecution, not winning cases, necessarily, but fair trials; and then, finding the right evidence and bringing the right case. So I don't think there's anything particular about the military commissions that's any different from any other prosecution.

Q: But wouldn't it be more difficult to find the evidence if you are still involved in the war? And do you see any difficulties, since it is going to be the military is involved in that?

Borch: I think it depends on the particular case, and I really can't answer your question without looking at a particular case. I'm just not able to do that at this time.

Q: Have you looked at any particular cases?

Borch: Yeah, do you know?

Smith: Well, maybe just because I've had a little more time looking at the cases, there's no doubt that you're right, and there's going to be a lot of difficulties associated with getting evidence that, in many cases, comes from a different country, from people who are speaking a different language and from places where we're not in the habit with our law enforcement investigators to go in and get evidence. So, all of those difficulties will be there.

I would echo what Colonel Borch said, though, in terms of the difficulty you'll have when you actually get to trial. Anyone who has prosecuted a case anywhere, and I would say especially in the military -- if you've been in front of a panel of commissioned officers proving a case beyond a reasonable doubt, that's always the biggest hurdle. And it will be here. Those panels of officers take that -- the presumption of innocence and the standard that they're instructed to apply -- very seriously, and they will do that in these commission cases, as well.

Q: Have you looked at any particular cases?

Borch: Have we looked at any particular cases? Well, again, to go back to my earlier statement, we don't have any cases yet, because the president has to decide someone is subject to the jurisdiction of the commission. So --

Q: Any prospective cases?

Borch: Well, again, we're not at that point yet because -- look, we have to get ready, but the decision has to be made at the highest levels. It simply hasn't been made yet, so --

Q: You said earlier, "We're looking at a number of cases."

Borch: We are looking at a number of cases, but not anything in particular.

Q: Are you involved at all in the process of recommending which cases might be prosecuted by a tribunal -- by a commission?

Borch: Well, that's safe to say that at some point, I would be making recommendations once, again, a decision is made that someone is subject to the jurisdiction. I think that's a fair -- absolutely a fair statement. That's one of my roles as the acting chief prosecutor, is to make recommendations once the decision is made that someone is subject to the jurisdiction of the commission.


Q: I'm interested in what -- setting up this office on commissioning. What impact does that have on staffing of the JAG Corps in the different services? Have you had to move a lot of people into this office? And do you expect maybe to detail more in the future, or what?

Lietzau: I think --

Borch: Yeah, do you want to -- Colonel Lietzau could probably address that.

Lietzau: I don't know that we want to get into details with respect to numbers. I began the process of hiring some people, and hiring -- having them detailed over to the Military Commission Office. Colonel Borch has adopted that office, and I think has plans for the various people he'll need as cases develop and it becomes clearer what the needs will be.

Borch: I mean, the services are contributing top-notch people to the defense and to the prosecution. How many we're going to end up with, I think the honest answer is I don't know.

Lietzau: I think this is something the president issued his order that said if we try these people, it will be by military commission. And the Department of Defense issued a military order saying these are how we're going to do it.

And I think all of the different JAG departments from the different branches of services see the importance of that and are certainly going to support that as one of their primary goals and missions.

Q: Have all of the prosecutors you have so far been volunteers, or have you had to draft people?

Borch: Well, I think everyone has wanted to make a contribution to the process, whether they're in the defense side or the prosecution side. I think everyone has stepped forward right away, when offered the opportunity.

Q: Colonel, I know you don't want to talk about specific numbers, but can you give us an idea of the scope of what you're working with here? I mean, are you having -- are you moving equipment? Do you have facilities set up to deal with dozens of people on your teams? How many -- what's the size and scope of this team?

And just sort of following along on that, are you planning for the potential, if the president were to send you names of, you know, from 10 to 50 people, that you would have one tribunal going at a time, or you'd have three or four going at a time? How would this work if you have potentially --

Borch: That's an awful lot of questions. Look, the honest answer is we just don't know at this point because the critical first decisions as to who's subject to the jurisdiction haven't been made. But we have to look at all these particular issues and consider all of them, and we are. And everything you mentioned in your more than 20 questions there, I think, are things that we're having to wrestle with and think about.

Q: But it's really one question, though, about the scope and size that you're preparing for, and how big is the team that you have put together right now -- the scope of it. Is it a small team of just a handful of people, that could grow exponentially, or is this a -- can you give us any idea of the size and scope of the team and facilities?

Lietzau: Right now, I think a good number to use for the Office of Military Commissions, which includes the appointing authority, the prosecution and defense, is about a dozen people. And depending on where we see things going, how many people the president may determine are subject to his order, I think you may see that expand. But at this point, I think it's premature to say "we're going to need this many people," until we really see where it goes from here.

Smith: There's a point, if I could add too, that I think is important to make. It's related to how -- the office, obviously, could grow as it would need to, if it needed to. And similarly, the rules and the instructions were all drafted to be able to have the kind of flexibility to do all the things you described as possibilities.

It's an important thing to realize is that we're talking about conducting military commissions during an armed conflict. Sometimes I think that, based on some of the questions I've heard coming from the media, there's this perception that people in Guantanamo Bay are in some sort of pre-trial confinement, and that's not the case. What we're doing by starting trials is actually the exception, historically, not the delay in getting to trials.

So, you have to recognize that it is still an ongoing armed conflict, and it's going to be difficult to be able to figure out exactly all the things that we'll need to do during that armed conflict. Remember, after World War II, Nuremberg took place after the war had been won. All the commissions were after the war had been won. Here we're talking -- we're still in the midst of hostilities.

Q: The president says we'll never win this war; it's going to be a perpetual war. At some point we have to start the --

Lietzau: Well, it depends which war you're talking about. But clearly, right now there are ongoing hostilities. And in terms of trying to get a picture of what all the trials will look like, that would be unprecedented.

Borch: To amplify what Colonel Lietzau is saying -- and I think this is a really good point -- the law is very clear. International law, the law of armed conflict makes clear that enemy combatants captured during that conflict may be detained for the duration of hostilities. So again, I would echo with what he says; this is rather unprecedented to go ahead and look at this prior to the end of hostilities. And again, a lot of things to be worked out. The honest answer to you is, we're considering all these things, and we hope to have the answers when we need them.

Q: If you're talking about hostility, the end of hostilities in the war on terrorism, we could be 30 years, 40 years.

Lietzau: I think the -- when the end of hostilities is going to be is probably beyond the purview of what we're here to talk about. Nevertheless, we can at least say at this point in time, we have ongoing hostilities, and that does complicate matters when you start taking people to trial who are being detained as enemy combatants.

Q: I know you -- the president hasn't decided who will be prosecuted.

Smith: That's right.

Q: But the cases you've mentioned you're looking at, how many? Six, 20, 50?

Smith: And again, to get back to the answer, I think it's really premature to say, we're looking at them. You know, we're just --

Q: You were the one who said you're looking at the cases. How many --

Smith: (Inaudible) --, but we can't really say, well, we're looking at 20, we're looking at six. The president hasn't --

Q: Well, again, you raised it. I mean, how many are you looking at? Six, 12, 100?

Can you say, Colonel?

Lietzau: I've looked at several.

Q: Several?

Smith: He's the one that's looking at them, so I'll leave that to Colonel Lietzau.

Q: You've only looked at several? Three?

Borch: I'll tell you this, that I'm looking at a number of cases -- a number of cases.

Q: Big number? Little number? (Laughter.) Double-digit number?

Borch: I think it's safe to say we're in -- we're out of the single digits. But I can't give you anything more precise than that. And I really hesitate to do that, because none of these cases exist until the president makes the decision that there's jurisdiction. I mean, to a very real extent, my role as the acting chief prosecutor is to be ready if the commander in chief makes the decision.

Smith: Lady in the back has had her hand up.

Borch: Yeah?

Q: (Off mike) -- if most of those cases are limited to al Qaeda? Or have they expanded to people from the Iraq war?

Borch: Well, remember that the order here, and I know Colonel Lietzau will jump in to amplify -- the order creating the military commissions requires terrorism as a basis. So if we're talking about al Qaeda or other terrorist activities, those people involved in that are subject to the military commissions. What I'm doing as the acting chief prosecutor is looking at terrorism and detainees being held at Guantanamo Bay. So, everything that's going on in Iraq is really outside the focus of my activities.

Q: Can I ask a question about the basic premise of what you're doing here? The laws of armed conflict are a very codified group of the laws of war -- different things that play into that. The president and the secretary of Defense have said repeatedly that this is a totally different war -- whole new paradigm. Do the laws that now exist, are they sufficient to fit what you're going to be dealing with? I mean, the whole question of hostilities and when they cease is a perfect example of that. It's a different type of war. Are you going to have to -- or will this result in some new and different types of --

Borch: That is an excellent question. It's a very hard question, and it's way beyond the scope of what I'm doing as the acting prosecutor. So --

Q: Well, as an academic, do you think that this is something, you know, that is going to result in a body of law --

Borch: I'm not here as an academic, and honestly, that question -- we could discuss that for hours. I would say good question, tough answers. But it's really way outside what I'm doing here as the acting chief prosecutor. So, I really can't address that, unless --

Lietzau: Well, maybe I didn't understand it the same way you did, but if you're asking about the substantive law that we would apply --

Q: Right.

Lietzau: -- to these situations, that is addressed in Military Commission Instruction No. 2.

Now, I might disagree with your statement that it's been so clearly codified in recent years. I'm not sure that the law of war has been subject to a lot of codification. It is something that's customary, has been around for a long time, and I believe is, yes, very applicable here. Just because it's a new war doesn't mean that the legal principles that have been the antecedents of many of our treaties in recent years aren't applicable.

Q: I would guess that a prosecutor would -- or, somebody who's a defender would turn that around and use that as his or her principal point of defense, and say, look, this is different. We've got this body back here --

Borch: I think you should ask the acting chief defense counsel that question when he comes here in a couple minutes.

Q: Are you anticipating that that might be something that's going to come up quite frequently?

Lietzau: Well, when you prosecute someone, you have to prove all of the elements of an offense. And the offenses that are found within the law of armed conflict -- international law of armed conflict -- are adequate to cover the activities that we would want to prosecute in this -- in the war against terrorism. I think that while there is something new happening in this war, that doesn't mean that everything we do has to be new. We turned back to the principles that have animated the law of armed conflict for hundreds of years. I reflect back on a regimental commander who once told me, "If you want a new idea, read an old book." And maybe in some ways, that's what we've done with military commissions. It's something that's been used historically, years ago, but it's quite applicable today.

Borch: Yeah, I -- to amplify what Colonel Lietzau is saying, there isn't anything new here in this military commission process. These are all things that we have done in the past historically, in World War II, during World War II. There's nothing new or strange or out of the ordinary here. And I agree with you. Everything in international law and the law of armed conflict is satisfactory to let us run and do these militaries.

Smith: I think we have time for maybe two more questions.

Q: I have a question. Usually, at a military courts-martial, if a defendant is charged with a particularly egregious offense, he gets two lawyers, and then there will be two prosecutors. Would that be the case with a trial by commission, giving the individual more than one person to represent them?

Lietzau: Again, I would just answer that the rules were drafted to accommodate that kind of flexibility that would be needed. It doesn't mandate anything like that, but it provides the flexibility so that, on an ad hoc situation, we can have the right number of people doing the right job.

Borch: Every detainee gets a detailed military counsel. And you know that every accused also gets a civilian counsel if that's what he wants to have, wants to hire.

Smith: And your premise first on court martials, it's not necessarily true that every defendant gets two defense counsel and the prosecution always has two. That is the case in many court martials, but I've been involved in plenty of court martials where there's one defense counsel and one prosecutor as well.

Q: Well, if it's a real serious crime, normally they have two. Also, the commission; commissioners instead of judges? And how many?

Borch: There's a presiding official, who will be a judge advocate, and then there are panel members, and I think the panel size is

Col./Maj. : Three to seven.

Borch: Three to seven. Three to seven. But there will probably -- we're certainly talking about alternates, as well.

Smith: And one final question, from the lady in the back.

Q: Discussion by the president -- that the president might expand the definition of who can be tried to include U.S. citizens like Padilla -- (off mike)?

Borch: Well, that's, of course, a really good question. But again, you have to ask somebody else that question, not the acting chief prosecutor. I can't speak for what the president might or might not do or what advice he might be getting.

Would you agree with that?

(Cross talk.)

Q: Just a procedural question. Is there a higher court of appeals, or is this it?

Lietzau: There's a review panel that's detailed in Military Commission Order No. 1 that will review every case after it goes through the appointing authorities, forward it to the review panel, then to the secretary of Defense, then to the president. So there's a fairly extensive review process that takes place for every case.

Staff: You actually went through that in some detail in the last briefing that we had, that we can get the transcript for you.

Thank you, gentlemen. We're going to switch them out. The acting chief defense counsel is here and is going to join us now.


Smith: Colonel Gunn is also a career military lawyer and, should it be required to proceed with military commissions, he'll be directing the entire defense team and also advising the general counsel on all matters related to the defense. He'll also manage a pool of civilian attorneys that are being solicited by the Department of Defense for possible involvement in commissions. And he's here to talk to you about that process and take your questions.

Gunn: Thank you.

As previously mentioned, I am Colonel Will Gunn. I'm an Air Force lawyer. This week I celebrate 23 years of active military service. I'm an Air Force Academy graduate and a graduate of Harvard Law School.

In my current capacity I've been appointed as acting chief defense counsel for the military commissions. In that capacity it is my responsibility to ensure that all detainees who are brought to trial before military commissions receive a zealous defense, receive zealous representation by defense counsel. That representation can be by military defense counsel, and also by civilian defense counsel. In all instances, detainees brought to trial will receive representation by military defense counsel. However, if they're not satisfied with that particular military counsel, they can request other military counsel, and such counsel will be made available to them if that person is determined to be reasonably available. They're also entitled to be represented by civilian defense counsel, provided that it is at no expense to the United States.

I'll now take your questions. Yes.

Q: Colonel Gunn, I'm wondering approximately how many applications you've received from civilian lawyers interested in becoming part of a pool of available attorneys. And also, I understand that you'll be responsible for ensuring that the civilian attorneys comply with certain rules and regulations, and I'd like to know how you'll go about doing that.

Gunn: First of all, to date I have not received any applications from civilian defense counsel. I do anticipate that that will change. Within the last couple of days we received inquiries from the first two individuals. But I anticipate as a result of today that is going to change a great deal.

And could you repeat the second part of your question, please?

Q: I understand that part of your role is to ensure that the civilian defense counsel abide by certain rules and restrictions on their activities. And I'd like to know how you can enforce those rules and be sure that even individuals that aren't associated with the military abide by those restrictions.

Gunn: Well, going into the military commissions, any civilian defense counsel that desires to get involved and become a member of the pool has to sign a document stating that they are aware of the rules and they agree to abide by certain parameters. So, they will -- they are going to agree to that first of all.

Secondly, though, if they fail to abide by those parameters, the only real sanction that I see presently is that they would be forbidden from taking part in commissions after that point.

Smith: And I think if you want to look at a good copy of what they'll be signing or agreeing to, if you take a look at Military Instruction No. 5, that goes over the agreement they'll be signing.

Q: Colonel, there's a concern among some legal experts that the rules for the military commissions are much more restrictive for the defense counsel. For example, that you don't get evidence until a week before trial; you don't -- you're not as -- you're gagged, almost -- there seems to be some provisions for that. And that there are also limits on your ability to conduct your own investigation in the case. Does that concern you at all?

Gunn: If those were in fact the rules, that -- I would certainly be concerned by that. But I am not under the belief that those are going to be the conditions under which defense counsel will operate in the system.

Right now, no one has been brought up on charges. As a result, none of the detainees are represented at this point in time. But after a detainee is charged, then I anticipate a negotiation process whereby the defense counsel will negotiate with the prosecutors to determine when the defense counsel is in a position to provide an adequate defense. And that's going to be dependent upon the defense counsel conducting an independent evaluation of the evidence and an independent investigation of some sort.

Q: And you don't see any problems right now, the way the rules are written, where you could have an issue with that? Does it appear at all restrictive to you at this point?

Gunn: This is certainly a foreign environment in the sense that this is quite a bit different than the environment that I am accustomed to practicing in, and that's the Military Justice System of Courts Martial.

However, with the rules as they're presently drafted, I am firmly convinced that we are going to be able to operate in such a manner that we're going to be able to provide a zealous defense for all detainees brought before trial.


Q: So you don't think that the rules, as some critics have said, strongly favor the prosecution? For example, the admissibility of hearsay evidence; the potential monitoring of conversations between defense counsel and his defendant; some people have said a lack of sentencing guidelines, you know, in terms of this conviction could lead to the death penalty or one year in prison. You don't think that any of those rules are more beneficial to the prosecution and detrimental to the defense?

Gunn: I believe what I'm concentrating on, more than anything else right now, is the fact that in order for the government to convict anyone, they're going to have to maintain their burden of proof, and that burden is that they're going to have to prove that an individual is in fact guilty beyond a reasonable doubt.

I can guarantee you that the defense counsel that are being brought onto the team, that will be assigned to represent individual accused, individual detainees that are accused of crimes, that they're going to do everything in their power, within those rules, to challenge the government's case. We don't have a group of people that are just going to roll over and accept whatever is presented.

Smith: And if I could point out one thing, too, you brought up the rules of evidence. One thing to remember on that -- that same rule of evidence applies to defense, as well as to the government. So there may be pieces of evidence that the defense will be able to admit to these cases that otherwise may not be admissible without the relaxed rules. So it's a pendulum that goes both ways.

Q: On the rules, let me just follow up. Is there any provision in the instructions for a defendant to challenge the commissions, to challenge his eligibility to be tried before a commission? For example, he argues, "I am a prisoner of war. I don't belong here." Is there anything that allows such a challenge to take place?

Smith: I'm not in a good position to answer that right now, in terms of how that will actually play out. From a jurisdictional standpoint, I'd see that as a fundamental jurisdictional question. And exactly how that will work procedurally, I'm not sure at this point.

Q: I mean, that seems like it would be a -- the first argument that someone would make is that "I don't belong here."

Q: Colonel, how do you --

Smith: And one thing you have to remember too, though -- there were prisoners of war who were tried during World War II under military commissions. So it's not really clear that -- just the fact you're a prisoner of war doesn't mean a military commission could not be the appropriate forum.

Q: Right. I'm just talking about someone making that argument.

Q: Colonel, how do you envision this relationship with the civilian lawyers might work? I mean, how would one of your military defense lawyers be interacting with a civilian lawyer? What would that civilian lawyer be doing inside one of these trials? How would any of that work?

Gunn: Usually, in a military context, when a civilian lawyer comes aboard and becomes part of the defense team, that lawyer becomes the senior lawyer, and he is the head of the team.

This situation is a little bit different, in the sense that while that individual may become part of the team, there may be certain segments of a commission that that person may not be able to sit in on, because they may not have a security clearance that allows them access to that particular portion. So that's going to be a bit unusual.

In terms of how it's going to work, I can assure you that both the military counsel and the civilian counsel are going to consult with one another in terms of determining what the trial strategy will be.

I should also point out that in order for civilian counsel to become part of the defense team, the particular detainee who is accused of a crime will have to make that decision that they want to be represented by civilian counsel.

Q: And the civilian has to be a U.S. citizen, is that correct?

Gunn: That is correct.

Q: May I just follow up to that security clearance issue? It seems to me that there is a problem right now in the Alexandria courts where this is becoming an issue with that particular individual. How can a member of a defendant's team possibly provide a proper defense without having a full knowledge of an entire scope of information that's available about that person? How is it possible that that person could be effective in defense without -- with having a major chunk of the prosecutor's case unavailable to them?

Gunn: It is -- it's entirely possible that for each individual case, there will be a volume of information that the government may have developed from an intelligence standpoint on that particular individual and activities that that individual has been involved in. However, in order for -- in order for that to be of value inside the commission, the government is going to have to present that in some manner. There could certainly be challenges when members of the defense team don't have access to the same amount of information. What I can tell you is that we're going to -- members of the defense team are going to do everything in their power to bridge that while at the same time being conscious of our limitations from a national security standpoint.

Smith: And one thing you have to remember on that too, one of the requirements is that a civilian attorney must be eligible for a "secret" clearance at the minimum. There may be civilian defense attorneys who are eligible and actually obtain a "top secret" clearance. And if that's the case, they would have access to more information. So it's really going to depend on that individual's eligibility.

Q: Are you going to accelerate the clearance the process associated with that, because it can take six to nine months to get "secret" clearance?

Smith: And I think those issues are being worked out right now.

Q: But the -- I know it's difficult to say because you don't have a defendant in front of you, but generally speaking, what is your position on how much of these military commissions, once one gets underway, do you think is in the best interest of the defendants to have open, in open session, where the public can see what's going on? The concern, as you know, I'm sure, is that people think that these military commissions are going to be completely secret, and the Defense Department keeps assuring everybody that that's not the case. But what's your position, sir, on how open it should be to help the defendant?

Gunn: Recently, I was reading an excerpt of an article by Lloyd Cutler, who was the youngest defense counsel -- or youngest prosecutor in the in re Quirin case, where we had the German saboteurs during World War II; they came ashore, and eventually met a military commission. And he was talking about the military commission process that was being developed at the time that he wrote the article. And he was also talking about that process, and he commented on the fact that a great deal of it was -- well, all of it was conducted in secret, and the press was merely briefed on it. And he looked at it as a mistake.

I agree with that; that to the extent that this process is as open as possible, within the constraints of national security, that's going to be in the best interests of not only the detainees, but more -- from a broader standpoint, I see that as in the best interests of the nation as a whole, because this process is going to be judged not so much by virtue of whether or not a particular detainee was convicted by military commission, it will be judged from the world community by virtue of whether or not the process was fair and just. And as a result of that, you in the press play a vital role in helping to accomplish that.

Q: May I ask a question? Earlier, the incoming acting chief prosecutor said you had a real zeal to make certain that there will be a fair trial. I wondered your thoughts about that? And what happens if in fact you don't get the information that they have, the reams of information that the have? Will you argue that that won't be a fair trial? What are your thoughts along those lines?

Gunn: First of all, in terms of my personal zeal, my -- let me just say that this is a not a position that I sought out. When I was contacted about taking on this position, I immediately recognized that the glamour position here was that of chief prosecutor, the opportunity to be America's hero. But as I reflected on it, it occurred to me that there is a valuable role to be played by defense counsel, a critical role to be played by defense counsel, again, not just for the individual, but also for the nation as a whole. And I looked at my background, I looked at the experiences that I've had and opportunities that I've been presented with, and I said if offered the opportunity, then I would go for that, I would accept it because of the opportunity to serve.

In terms of not receiving all the information that's out there, I can assure you that defense counsel that are part of this process, one of the things that we're doing in order to screen for those people is, we're looking for fighters. We're looking for people of sound judgment, of high integrity who are going to do their jobs to the utmost of their ability. And their job in this context is to represent individuals. And I can assure you, they are going to do that.

Q: You mentioned a couple of civilian lawyers have expressed interest?

Gunn: Yes.

Q: Can you say who they are? Anybody of note there, or -- a Harvard professor, or a celebrity lawyer?

Smith: I don't -- I don't think it would be appropriate to talk of any names at this time. After applications are put in and when the time is appropriate to announce who counsel may be for individual cases -- and again, it's going to be the accused's choice whether or not he wants someone to represent him who's a civilian. So I think it's a little premature to be talking on those issues right now.

Q: So far only a couple have expressed interest?

Gunn: Exactly.

Q: Are they offering to go pro bono on these, then, since most of these people, I would imagine, can't afford to -- ?

Gunn: Part of the application process will require them to identify whether or not they're willing to represent individuals on a pro bono basis.

Q: Can you just classify them in general, like, there might be some big names, or they're -- or they have a long history? (Light laughter.) Just in general?

Smith: I think we'll just leave that where we did.

So, now, this gentleman over here with the tie has had his hand up for a while.

Q: The -- there's obviously a finite pool of potential cases. Are you looking at them at all? Is there any kind of preparation in case some of them actually -- the president does make a decision that the process will go underway?

Gunn: The individuals who are part of the acting chief defense counsel's office right now have been working to look at the instructions as they are drafted so they can firmly understand that system. They've been doing other types of basic research, both from a historical standpoint as well as from an international law standpoint. So they can understand the context in which they're working. But again, since there are no cases actually before us right now, we don't have the ability to concentrate on a particular individual and a particular body of facts.

Q: Colonel, as a uniform member of the U.S. military and knowing what these folks have been accused of, in this building, in New York City, and around the world, how can you and the folks on your team really generate the passion to feel that these people deserve to be defended, let alone to actually go in to work every day for as long as it takes to defend them in that zealous way that you talk about? I mean, as a human being, how do you personally work your mind around that issue?

Gunn: We do that, first of all, because we believe in this country, and we believe in what this country espouses as its key values. And among those key values is the concept that every individual accused of a crime is presumed to be innocent. And so from that standpoint, defense counsel play a critical role with respect to that. We've all represented individuals that others may have despised, others may have been leery of, but we had a job to do in a particular situation. And sometimes, you discover that despite how things may look on the surface, as you get into them, and as you explore the facts and as the light of the judicial process focuses in on an individual, you find that things aren't always as they seem. And so, that's the value. We have a job to do. We believe in this nation. And we believe in what this nation espouses.

Smith: Ma'am?

Q: (Off mike) -- Colonel, you mentioned early on that you thought that after today -- I guess after some publicity about this, that there would be more applications from civilian lawyers. These are people who may have the same feelings toward the country you have, but you said that one of your reasons for doing this was to serve the country, and these are civilian lawyers. So, what would the attraction be, especially since you concede that probably the glamour job is on the other side -- what would draw the defense attorney to want to be part of this?

Smith: I think that's really something you would have to pose to them. I think different people are --

Q: Well, the colonel did say that he thought after today that would change. What about that? Why is knowing about this process likely to draw more people in?

Gunn: Well, already, in -- as a result of information about the commissions being in the press, we've seen articles by people in the academic community and in other sectors that have commented on the rules; that have commented on the wisdom of utilizing military commissions. There are some people that are interested in the process from an intellectual standpoint. There may be some people that are interested in the process largely because they also share the belief that if this is done, it has to be done right. And in order for it to be done right, it requires people of integrity operating within this system.

Smith: The lady in the black.

Q: Since both the chief defense counsel and the chief prosecutor report to individuals in the general counsel's office at the Pentagon, I'm wondering how that's different than the structure of the Judge Advocate General Corps of the various services, and what mechanisms have been set up to insulate defense attorneys from any of the political pressures that might exist in the general counsel's office?

Gunn: That is a matter that we've spent a great deal of time talking about. First of all, from the military justice standpoint, a military defense counsel at the lowest level works for a chief defense counsel, who generally works for a chief of defense services within the service, who ultimately works for that service's judge advocate general. And within this system, an individual defense counsel will work for me or whoever is occupying the position of the chief defense counsel. I will report to a deputy general counsel, who reports to the general counsel.

So, ultimately all roads lead back here to the Pentagon, whether you're talking about the military justice system or whether you're talking about this system. However, that road is a lot shorter under this system.

So here, what it is really going to take is going to take people of high integrity, for one thing. My commitment is to fight to make sure that the defense counsel that are part of this system are free from improper influence or interference in doing their jobs correctly. And we understand perfectly that the reason for -- one basic reason for a military commission is to protect national security; but I believe that we can operate within the system, the interest of national security can be protected and we can have a zealous defense function in which defense counsel are free to do the job that they need to do.

Smith: I think we have time for two more questions. Ma'am?

Q: Do the civilian defense counsels have to pay for their own security clearances? And if so, do you know how much that would be?

Gunn: They do have to pay for their own security clearances, but I don't have the information on the amount.

Smith: And some may already have their security clearances from either being in the service or some other branch of the government as well. And we'll take a final question from the gentleman with the white shirt.

Q: Pardon me if you've answered this before. I missed the top of your briefing. How are you preparing for these upcoming trials since you've been assigned this? How are you preparing? Are you looking at past cases from past wars, past conflicts, or are you taking theoretical situations that might be coming up and essentially war gaming, or what? How are you preparing for what's coming up?

Gunn: In a general sense, you could say that we're doing a little bit of all of that. We're making sure that the defense counsel -- first of all, we have defense counsel that are very experienced who we anticipate will be part of this team and who will represent individuals that actually are accused of crimes. And to the extent that there are aspects of the process that they're not familiar with, then we're going to do all that we can to ensure that they receive training in those areas. They're reading the law review articles that have already been published that deal with military commissions. They're reading the press reports. And they're looking at such things as the sentencing guidelines, which is a foreign concept under the military system, but which is very familiar to people within the federal defense system. So they're receiving training in all of those areas.

Smith: And just to clarify one point we talked about earlier on access to classified information, access to classified information is determined by civilian defense counsel's security clearance and also the presiding officer. So just because he may have a "top secret" clearance doesn't mean he may have access to all "top secret" information that's available at the trial. However, stuff that is presented at the trial, the military defense counsel will be included in all closed sessions.

And we have time for one more question, if there's a --

Q: This goes back to the larger question that I was asking the prosecution team about whether military law, as it now exists, is actually adequate to cover the types of crimes that you would be defending your clients for, considering the fact that the president and others have said that this is a different type of war that we have experienced before? Is that something -- is this going to create a whole new body of international law as you go through the process, do you think?

Gunn: I don't know if I'm the best person to address that particular question. I do know that there's a great deal that's being written right now among law professors and others who are writing in various law reviews and law journals. And they are addressing issues along those lines.

My job right now is learning as much as I can about a process that's only on paper and doing all that I can from a defense perspective to execute that system so that that system does in fact present fair and just results. That's what I'm focusing in on.

Q: But it seems like having to take or adapt something that isn't necessarily applicable to the particular situation would be a disadvantage for you, to try to apply a law that might have been written to apply to conventional warfare to an asymmetric or terrorist environment could be very difficult for you. Does that make sense?

Gunn: I believe I follow your question. I don't have any control over that.

Q: Are there procedures in place for the press to cover these tribunals?

Smith: The going-in position is there will -- the military commissions will be open to the press to the maximum extent possible. How that's going to be worked exactly -- details are still being talked about and decided, and we will let you guys know as soon as we have those in place.

Thank you very much.


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