Officer Describes Military Commissions Procedures
By Kathleen T. Rhem
American Forces Press Service
Hearings in two of the pending war crimes cases could resume within 30 to 45 days, Air Force Brig. Gen. Thomas Hemingway, legal adviser to the appointing authority for the Office of Military Commissions, said in a Pentagon briefing. "We intend to move forward quickly," he said.
Military commissions proceedings in four cases were halted in December, after a November ruling in the U.S. District Court for the District of Columbia. On July 15, a federal appeals court overturned that ruling, clearing the way for commissions to resume.
The exact timing of when commissions proceedings resume depends primarily on when the U.S. Court of Appeals for the D.C. Circuit issues a mandate lifting the previous stay. Such mandates are typically issued 50 days after a ruling, according to a Defense Department news release.
The release stated that Defense and Justice Department officials are considering whether to ask the court to issue the mandate immediately. Hemmingway said today that no decision on such a request had been made.
When hearings do get back under way, they'll look much like any other court proceeding Americans are familiar with. A three-officer panel will hear arguments, and one senior officer will preside. Defense and prosecuting teams will have tables in the court. A court reporter, bailiffs, translators and military police will also be present.
The gallery will include detainees' family members -- they're allowed two family members in the courtroom at a time, media members, diplomatic representatives from the detainees' home countries, U.S. government officials, and observers from nongovernmental human-rights organizations.
Ten media members are allowed to be in the courtroom, and a remote media center will allow up to 90 other reporters to view the proceedings via closed-circuit television.
Three officers have been empanelled to hear arguments in the cases of Salim Ahmed Hamdan, a Yemeni who has admitted to being a driver of terrorist leader Osama bin Laden, and David Hicks, an Australian who allegedly trained in Kosovo and the traveled to Afghanistan to fight for the Taliban government.
A second panel of officers will be appointed to hear the cases of Ali Hamza Ahmad Sulayman al Bahlul, from Yemen, and Ibrahim Ahmed Mahmoud al Qosi, from Sudan. To date, these four are the only detainees at Guantanamo Bay who have been charged with war crimes.
The president has found "reason to believe" that eight others are eligible to be charged. Hemingway said today that he received proposed charges against three of those detainees from the Office of the Chief Prosecutor July 18.
The general noted that "fully litigated" cases can be "lengthy," but he didn't hazard a guess as to how long each case might go on. Many variables, including the number and type of motions defense attorneys file, the number of witnesses called, and whether any detainee wishes to plead guilty, could impact the length of each case.
Hemingway noted that none of the four detainees already charged has indicated he wants to plead guilty and that none of them is eligible for the death penalty. The general also noted that the prosecution is likely to call 10 to 20 witnesses in each case.
Commissions procedures allow for closed sessions, with the courtroom cleared, to present classified evidence. However, Hemingway said, officials will use this option only when they have to. "Closed sessions will occur only when necessary to protect national security information," he said.
The general said national security concerns are more pressing for these proceedings than in many past military commissions because the United States is still at war.
"The ad hoc international tribunals all were initiated after the end of a conflict. The major World War II military commissions all were conducted at the end of the conflict," Hemingway said. "When the enemy has been vanquished, you don't have the same national security concerns that you have when you are conducting them during an ongoing conflict."
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