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Homeland Security

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

Presenter: Principal Deputy General Counsel Dan Dell’Orto and Legal Advisor Brigadier General Thomas Hemingway, Office of Military Commisions January 18, 2007 1:30 PM EST

DoD Press Briefing on New Military Commissions Rules


MR. WHITMAN: Good afternoon. Welcome. Thank you for joining us this afternoon.

On October 17th, the president signed the Military Commissions Act of 2006. The Military Commissions Act provided statutory authority to try unlawful combatants for violations of the law of war. As a result of that, the Military Commission Act authorized the secretary of Defense to promulgate procedures for military commissions and report those procedures back to the Congress.

Well, today, the department is submitting -- I think as we speak actually -- a report to Congress that contains the military commission procedures, and today, we have a couple of individuals who were intimately involved in that process -- although it was very much an inter-departmental and inter-agency effort that took place, and I'm sure they'll talk to some of that -- that are here today to outline not only the process, but some of the substance of what the manual now contains. And once it has been transmitted to Congress, we will be making it available to you after this briefing also, and we'll do that on our Internet site.

With that, I'd like to introduce the two individuals that will be briefing today. The principal deputy general counsel is Mr. Dan Dell'Orto, and we have the legal advisor to the Office of Military Commissions, Brigadier General Thomas Hemingway. We also have a supporting cast, some distinguished officials from the Justice Department. Should we get into those areas, they're here to -- Steve Engel (sp) is here to join us if we have some questions that go into areas that they are most expertise on.

So with that, I'm going to ask Mr. Dell'Orto to come up, give you an overview of where we've been and then invite General Hemingway to the podium to take your questions.

MR. DELL'ORTO: My principal purpose today is to inform you that today the secretary of Defense is submitting to Congress a comprehensive set of pretrial, trial and post-trial procedures, including elements and modes of proof for cases triable by military commissions, as required by the Military Commissions Act of 2006.

These procedures comprise what we are calling the Manual for Military Commissions, and will govern the full and fair prosecution of allegations against alien unlawful enemy combatants by military commissions.

Before I talk about the Manual for Military Commissions, however, I have a related personnel announcement to make. As you may know, the Military Commissions Act provides for a convening authority to be designated by the secretary of Defense. I am pleased to inform you that the Honorable Susan Crawford, former chief judge of the United States Court of Appeals of the Armed Forces, has agreed to serve as the convening authority for military commissions. Judge Crawford has a distinguished record of legal, managerial and judicial service, and the department is thrilled that she has agreed again to serve the public in another critical role.

The overriding considerations reflected in the manual are fairness and fidelity to the Military Commissions Act of 2006. The act and the procedures contained in this manual will ensure that alien unlawful enemy combatants who are suspected of war crimes and other -- and certain other offenses are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people.

The Manual for Military Commissions follows the Manual for Courts-Martial both in form and in substance, with exceptions that are necessary to comport with the careful balancing of interests reflected in the Military Commissions Act of 2006.

You should find that the numbering of the military commission rules parallels their counterpart Manual for Court-Martial rules.

As required by the Military Commissions Act of 2006, the rules and procedures in the Manual for Military Commissions apply the principles of law and the rules of evidence used in general courts-martial, so far as the secretary of Defense considers practicable or consistent with military or intelligence activities. The department believes that these rules and procedures meet that statutory standard.

The manual was the product of a great deal of hard work by a number of persons.

The Military Commissions Act of 2006 required reporting of the rules to Congress within 90 days of the act, which the president signed on October 17th, 2006. Personnel from the Office of Military Commissions undertook the early drafting effort, which consumed most of the month of October. Upon completion of the first draft, we shared it with Department of Justice representatives to provide us with an early confirmation that we were proceeding in a manner consistent with the Military Commissions Act of 2006, and as part of the statutes requirement to consult with the attorney general.

In early to mid-November, the Judge Advocates General and general counsels of the military departments provided representatives who, together with the original drafters and Department of Justice attorneys, worked to generate several successive drafts. On November -- excuse me, on December 21st, we shared a mature draft with representatives of a number of executive branch agencies. On January 3rd, those representatives offered their suggestions on the draft, and over the ensuing days there were considerable discussions among department and interagency representatives to address alternative approaches to a number of the rules and a number of the issues. Last week we worked through a final coordination within the department before advising the secretary.

Among other things, the manual provides: discretion by and deference to independent military judges, who will serve as presiding officials and who will ensure fairness; an independent defense function to represent defendants zealously and protect against even the appearance of unlawful influence or conflict of interest; the presumption of an accused innocence, and the requirement that the prosecution prove its case beyond a reasonable doubt; a jury system comparable to that used in general courts-martial; a requirement that the accused be provided, in advance, evidence to be introduced against him or her at trial; prohibition against admitting classified evidence outside the presence of the accused; a reasonable opportunity for the accused to obtain evidence and witnesses; formal rules of evidence, consistent with federal and courts-martial practice, with those exceptions required to be consistent with the Military Commissions Act of 2006; safeguards to protect the rights of confrontation, protection from self-incrimination, and to protect most common law evidentiary privileges; suppression of statements obtained by torture or in violation of the Detainee Treatment Act of 2005; a requirement that the prosecution provide exculpatory evidence to an accused consistent with federal and courts-martial practice; and a thorough, comprehensive and independent appellate system.

An accused will have access to the Court of Military Commission Review, the Circuit Court for the District of Columbia, and the Supreme Court of the United States.

In conclusion, the department believes that the Manual for Military Commissions implements the Military Commissions Act of 2006, in which Congress and the president, acting together, established the most comprehensive legal framework for the prosecution of war criminals in U.S. history.

General Hemingway and I will now take your questions.

Yes, ma'am?

Q: Forgive me if you covered this, because I was a little bit late. No disrespect meant on that.

Could you explain to me what the difference is -- I think we operate as the court-martial as kind of being the baseline. Where does this differ from court-martial, because it sounds like you brought it a little bit more closely to reflect that. It would be easier to understand it if we understand how it's different.

MR. DELL'ORTO: Well, I mean, there will be a number of differences certainly in process and procedure, some of which will be barely recognizable to people who are familiar with the court-martial system. I think it would be hard to enumerate all of those here in this setting, but they are -- some are fairly insignificant; others I think are more significant.

Q: Could you outline what the significance differences are, because that's what people have criticized this process for.

MR. DELL'ORTO: I think it's easier to focus on the places where we're more alike, because there are many more of those.

I mean we do have court members who will be commissioned officers. There must be a minimum of five court members, and that is very comparable. In fact, five is the minimum number in a military court-martial.

The military judge will be as qualified as any military judge. In fact, they will be military judges who are certified to practice as military judges in our court-martial system, and they will be the same people who will be presiding over these proceedings.

The accused has all of the rights that I laid out, which are very much the same as they would be in a court-martial.

So I think that -- as I said at the outset, I think you'll find that there are many more similarities than there are differences, when all is said and done.

Q: And may I follow up? One of the questions -- or the criticisms that gets raised quite often is use of hearsay in evidence. And I understand the Pentagon's wish to be able to include hearsay from American officers who aren't present. But one of the criticisms I've heard is that there is an attempt to include hearsay testimony from maybe the people that handed over the prisoners in the first place, many of whom were paid an amount of money to hunt down those people and turn them over. So there's a question of, you know, them having a financial interest in testifying to a person's guilt as opposed to maybe a military officer's honor.

MR. DELL'ORTO: Well, first of all, the statute provides for the admissibility of hearsay evidence to take into account, I think, the unique conditions under which evidence will be obtained on the battlefield. And so we are in accordance with the statute in doing that. Certainly both sides having the opportunity to admit hearsay levels the playing field, if you will, on that particular issue, but both sides, again, will be able to attack the credibility of the witnesses or the reliability of that evidence. And the only evidence that will be submitted before the members ultimately will be evidence that the judge determines to be reliable and probative.

Yes, sir?

Q: The Military Commissions Act said in the case of coerced evidence that was obtained before the passage of the Detainee Treatment Act the judge determined what could be admitted. How does this -- what are the rules that you're laying out today, and how does that clarify or guide judges' actions?

GEN. HEMINGWAY: Well, there's a clear prohibition against evidence that was obtained by torture. If the judge finds that, the evidence simply doesn't come in. Other than that, the evidence must comport with the Military Detainee Treatment Act of 2005. And what was provided in that act was that information had to be excluded if it was obtained by cruel, inhumane or degrading treatment. Now, if it was obtained prior to that time, the judge has to make an independent finding that it is nevertheless reliable evidence (sic) [a reliable statement].

So you've really got three issues that could possibly be facing the judge. Number one, if it was torture, it stays out. If it's a violation of the Detainee Treatment Act, it stays out. If it's before that, the judge has to make an independent determination as to the reliability of the evidence (sic) [statement].

Q: I'm a little bit in a bad position to be asking questions since I haven't gotten a chance to read these rules, but it's that last point that I was, after the end of the Military Commissions Act debate, a little bit unsure about. But this judge has to make a finding that the coerced evidence is reliable before he or she admits it. Do these rules today provide any guidance for the judges in how to determine whether something is reliable, or is that outside the scope of these rules?

GEN. HEMINGWAY: Well, there's a statutory standard that's set out, and it's the same kind of judgments that trial judges routinely make.

Q: (Inaudible) -- given access to any evidence that's submitted that was obtained through cruel and inhumane and --

GEN. HEMINGWAY: Anything that's admitted has to be shown to the defense team.

Q: What about top-flight evidence? What are the standards for using substitutes or proxies for top-flight evidence?

GEN. HEMINGWAY: Well, that's a determination to be made by the trial judge, whether or not the trial judge, looking at both the classified evidence and the substitute, finds that it is a reasonable substitution. And that's a question of fact for the trial judge to make.

Thank you.

Q: The discussion of the admissibility or inadmissibility of evidence obtained through torture raises the question: who among these prisoners were tortured and who tortured them? I mean, the United States has said over and over again it doesn't torture, so where does this inadmissible evidence obtained from torture come from?

GEN. HEMINGWAY: Well, I haven't seen a case yet that's been presented to me that had any evidence where there was an allegation of that. But if it does arise, there's a clear prohibition. And I can't speculate on cases that I haven't seen.

MR. DELL'ORTO: And certainly these rules were not drafted with knowledge of the evidence of those cases. I mean, those of us who were part of the drafting team have not sat down and looked at any of these cases to assess the state of the evidence or the volume of evidence; in some cases, the volume is considerable, but in terms of making that sort of an assessment on a case-by-case basis, we're not in a position to do that, so that did not factor into it.

Q: Is it talking about evidence that might obtained from another government?

MR. DELL'ORTO: They could be potentially tortured, no matter where it was -- wherever it was done. So again, not knowing whether there's any out there at all -- and --

GEN. HEMINGWAY: It's a pretty clear standard. If it's obtained by torture, it doesn't go in.

Q: Right. Oh, I guessed the standard. I'm just --

GEN. HEMINGWAY: It's not conditioned on who, what, where. It's -- the determination is, was the evidence (sic) [statement] obtained by torture?

Q: What are the -- what does this new manual lay out for -- specifically on classified evidence issues?

What sort of -- what were you -- what did the statute ask you to do in terms of the classified evidence rules here? And what have you done in this manual?

MR. DELL'ORTO: Well, key -- the statute provides that the accused will be permitted to be exposed or to see all the evidence that is provided to the members. So no evidence will be admissible that the accused himself has not seen, and that would be in the courtroom itself.

With respect to classified evidence, there is a recognition that some of these cases may involve some amount of classified evidence. And while you're in the middle of a war against this enemy, you need to be particularly concerned about the disclosure of that evidence to the accused or anyone else who might be in a position to see it in a courtroom setting.

And so the statute provides for -- and the manual then further lays out the procedures for -- by which the government would provide for the judge to make rulings as to whether certain matters should either be redacted, certain summaries should be provided, or other substitutes used for the classified evidence if the government was resisting putting that evidence into -- before the court.

And so the judge will control much of that. Ultimately, with the government deciding whether it -- or the judge deciding whether the substitute will meet the needs of the defense and the members, and if he were to say, "Look, you haven't done enough to provide enough substance in this," then the government would have to go back and decide whether it will then have to respond by either not offering that evidence or perhaps making another decision as to how to proceed with the case.

Q: So does this manual then give guidance to judges and prosecutors about what is enough classified -- what is enough information to put in a piece of classified evidence?

MR. DELL'ORTO: No, I think it's the judge that's going to make the call as to whether there's --

Q: (Off mike) -- judge.

MR. DELL'ORTO: Yes, with the prosecutor ultimately able to decide, "Look, I'm just not going to go that far, as far as the judge wants me to." And so we'll have to step back and reconsider where we're headed with the charge.

GEN. HEMINGWAY: Yeah. Those are all fact-based decisions that have to be addressed on a case-by-case basis.

MR. DELL'ORTO: Yes, ma'am?

Q: So just so I understand this correctly, there's the potential that evidence could be used against a defendant that the defendant never has the opportunity to see --



Q: No.



MR. DELL'ORTO: That potential does not exist at all. It's -- that evidence, although the judge might see it, would never be introduced into the courtroom if he, the judge, was not satisfied that there was an adequate substitute -- unclassified substitute for the classified evidence.

Q: Can you give us a sense of the timetable now? I mean, should we be booking our travel plans for Guantanamo?

MR. DELL'ORTO: Yes. Yes. (Laughter.)

Q: Or are there going to be some commissions moving forward soon?

MR. DELL'ORTO: Yes. They'll be moving forward soon. I mean, the prosecution -- the prosecutors and the defense counsel have not been provided with this manual before today. They have not seen it in draft. Obviously, they will both see it, and they will have to react to it, and the prosecutors will have to make their assessment of whether the manual affects the way that they're going to put their cases together.

We did have cases moving before -- Hamdan. Presumably, those cases have been -- are still there in terms of the assessment of the prosecutors about the strength of the evidence, and they'll have to prepare to compare that preparation to the rules to see that they need not make any adjustments or need to make some adjustments.

But I'll let General Hemingway further elaborate.

GEN. HEMINGWAY: I think that the prosecutors have said that they will work this expeditiously. As far as the 14 high-value detainees, and I use the reference that's been used in the media, those cases are going to have to be developed carefully, and it's going to take some time, because they are extraordinarily complex.

But of those cases that we had started with, I think they, along with others, will be in the initial queue for the Office of the Chief Prosecutor. But they've made no representations to me exactly which case will come out when, other than to tell me that they will move out as quickly as they possibly can.

Q: Do these rules or -- (inaudible) -- remind me of the Military Commissions Act itself -- do they have to be done at Guantanamo? Or under the rules that you have created today, could these military commissions for alien unlawful combatants be held anywhere?

MR. DELL'ORTO: They could be held anywhere. But obviously, we have facilities at Guantanamo. The accused, or at least the detainees, are there. The logical place for them to be tried would be Guantanamo. And as I said, we've had the facilities we've used before, and those facilities are still there ready to go. So we would -- we presume -- we move forward with the presumption that we will start those trials there and continue there.

Q: You said that both sides will have an opportunity to provide or to introduce hearsay evidence. Two questions: Will a detainee be able to introduce hearsay that comes via another detainee at Guantanamo?

And how much effort will you make to bring people from the battlefield in, for example, Afghanistan, who can provide hearsay evidence to support a claim made by a detainee?

MR. DELL'ORTO: There is certainly, I would say, a preference for having live testimony if it can be obtained. The judge will have a fair amount of control over the -- and certainly the government will have some responsibilities to try to obtain witnesses that the defense would request or its own witnesses. So I think there should not be an awful lot of focus on the hearsay. I think there will be some hearsay introduced, but I think you will see a lot of live witnesses.


To follow up on an earlier point, if the prosecution desires introducing classified evidence and the judge makes the decision to introduce a substitute or a summary, that substitute or summary will be introduced in the trial, and that is also what the defense will see.

GEN. HEMINGWAY: That's correct.

Q: So the judge may see the original classified information, and the prosecution might have it, but nobody else will see it and it would not be introduced.

GEN. HEMINGWAY: Whatever goes before the members will be presented to the defense team, including the accused.

Q: What does this manual say about a detainee's right to represent himself?

GEN. HEMINGWAY: Well, consistent with the Military Commission Act of 2006, pro se representation is authorized.

Q: Are they authorized to have a legal advisor of some kind?

GEN. HEMINGWAY: You mean if they are doing pro se representation?

Q: Yes, sir.


MR. DELL'ORTO: Yes, ma'am?

Q: How far along did Hamdan or any of the other cases get before they got stalled? And how would -- you talked about this in a little bit more detail. How would they be affected by these new rules, or were they not at all?

Do you have to throw out what has happened so far, or --

GEN. HEMINGWAY: The charging will start again under the Military --

Q: You have to start from ground zero?

GEN. HEMINGWAY: -- Military Commission Act. Now, there may be some discovery that's already taken place before that won't have to be completed all over again. But these are not recharging, they are charging under the Military Commission Act of 2006.

Q: Will the prosecuting lawyers be civilian lawyers, military lawyers, a mix?

GEN. HEMINGWAY: The statute authorizes both. And some cases will be military lawyers; some will be a mix.

Q: Is there a reason why you would use civilian lawyers instead of military lawyers?

GEN. HEMINGWAY: I don't know of any cases right now where we intend to use "instead of." But based on the nature of the case, the expertise may reside in the Department of Justice, as opposed to in the Department of Defense. So there are lots of reasons to use a team effort here.

MR. DELL'ORTO: And you may have backgrounds for some of the civilian prosecutors in some of the earlier terrorist cases would make it logical for them to be part of a defense team -- excuse me, a prosecution team.

Q: You mentioned that after the initial draft was done by the Department of Defense, it went to the Department of Justice. Can you tell us some of the things that they recommended you change? What was the nature of their input into these rules?

MR. DELL'ORTO: Well, I think there was an awful lot of positive input by all who participated. To be honest with you, although it was not that long ago, it seems like such a long time ago that I don't know that I could point to any particular issue.

I would say that, as I indicated in my opening remarks, we relied heavily on the Department of Justice attorneys to ensure that we were within the boundaries of the statute, and then worked closely with them subsequently to -- as we refined successive drafts and then brought others into the process as we moved along.

Yes, ma'am.

Q: Could you -- if you haven't already -- I could go back and check the transcript if you have -- refresh us on how many people have already been charged, how many will be recharged and how many cases you can going forward in court at any one time? Should we expect there'll be 10 people facing this? Or is it going to be sequentially one at a time?

GEN. HEMINGWAY: Well, the trials, given the current facilities, will be one at a time. Now, that doesn't mean that on any given five- day, six-day or seven-day period, there might not be proceedings on more than one case. We initially had 10 cases going, and I think we had, I think, a total of 14 in various preparatory stages. But I think that the office of the chief prosecutor has indicated they will address the cases that were already under way and additional cases to be put into the queue at this point.

Q: So there's no emphasis on -- priority on getting the high- value detainees into court before the other ones are even charged?

GEN. HEMINGWAY: The priority is getting the cases into court as soon as they're ready to go into court.

Q: How many cases have you made a determination that you won't bring charges if you don't have sufficient evidence?

GEN. HEMINGWAY: Well, I don't make that determination. That's a determination that is made by the office of the chief prosecutor. But they have said publicly, when asked what are the most that you see, they've said 60 to 80, that with the evidence that they have now, they think that there are potentially viable charges for violations of law of war in the 60 to 80 numbers, which -- you know, it's significant. But I haven't had an opportunity to review the evidence. I look at it once they present it to me.

Q: Can you just explain as well, what is the standard for the death penalty to be given? And if a detainee is going to be given a life sentence, for example, will they be held at Guantanamo or could they be held on U.S. soil?

MR. DELL'ORTO: TO answer your last question first, no determination made at this point. I think that's pretty far down the road for us to have to make or for the leadership to make those sorts of decisions.

As to the first, we -- I think we've already alluded to a couple of the requirements.

First, there must be a charge that is eligible for a death penalty. You must -- the government must prove not only the commission of the offense, the guilt of the accused of that defense, that is, a death penalty-qualified offense, but also must prove aggravating factors associated with that offense.

The membership of the court must be 12 members, and they must find unanimously the accused's guilt of the offense, the aggravating factors, and then unanimously agree on a sentence.

Q: Can you explain what aggravating factors means?

MR. DELL'ORTO: They are factors that would set apart the offense that otherwise standing alone -- present an enhanced degree of seriousness or -- about the offense itself. So they are listed in the manual as possibilities. It could be that you've committed multiple acts of murder. It could be that the person who was murdered was a child. It could be -- there are a number of them that you'll see in the manual that are laid out as possible aggravating factors. They're not unlike the factors you see in U.S. jurisprudence Article III courts and even in your state courts.

Q: How different are the rules on hearsay and coerced evidence in this iteration versus the previous iteration of the rules?

MR. DELL'ORTO: Well, I think clearly, given the requirements of the act, we've probably amended them to some extent. I don't recall specifically the old rules enough to say how much of a comparison or contrast there might be.

GEN. HEMINGWAY: Well, we had a clear prohibition against the admission of evidence (sic) [statements] obtained by torture under the rules that existed under the president's military order. That is now ingrained in statute. Likewise, the statutes of the Military Commission Act and the Detainee Treatment Act address the issue of cruel, inhumane or degrading treatment. So, no longer is it a regulatory, it is a statutory scheme that addresses those issues.

Q: With regard to hearsay, was there a specification for hearsay being admissible in the prior manual?

MR. DELL'ORTO: My recollection of the old rules is that hearsay was permissible.

GEN. HEMINGWAY: Hearsay was permissible, as it is under these rules.

Q: And you're pretty much saying that admissibility levels is equal this time as it was last time around?

GEN. HEMINGWAY: I think there's a fair balance there as far as the admission of evidence is concerned.

MR. DELL'ORTO: But I think there's probably been a little bit more definition as to how you handle hearsay under these rules than we had under the old rules.

Q: And is the judge being given greater discretion under this manual than the previous version?

MR. DELL'ORTO: Well, I think there's more precise guidance there for all the practitioners, and the judge still has a significant amount of discretion as he makes certain rulings during the course of the trial.

GEN. HEMINGWAY: Under the old rules, if you recall, at one time there was a provision for the judge to be overruled by the commission members.

That is no longer possible, of course. The judge has the same authority that you would expect a judge to have a in trial by any military tribunal.

Q: And is there an appeal process allowed?

GEN. HEMINGWAY: Certainly. Yeah, that's provided by statute. Mr. Dell'Orto made reference to the Court of Military Commission Review. You have the appeal from there to the United States Circuit Court of Appeals for the District of Columbia and from there to the Supreme Court of the United States. So you've got Article III court review now for the process, which was one of the significant suggestions of those who fell in the critics category before.

Q: Could you be more specific about the timing on this? You said soon, but I think that means --

GEN. HEMINGWAY: Well, I -- that's -- again, that's up to the Office of the Chief Prosecutor, and I'm not going to start ruling out dates for somebody else to comply with.

Q: So do you think spring or summer or this year?

GEN. HEMINGWAY: I think -- this year and spring all sound reasonable.

Q: Back to a previous question, you said -- you were asked how many of the cases there were not enough evidence to proceed on, and the answer was that there are about 60 to 80 cases that will likely be tried. Does that mean the remaining 200 plus detainees, that there's not enough evidence against --

GEN. HEMINGWAY: Well, there's -- there are 60 to 80 cases that the Office of the Chief Prosecutor has advised us have the potential for charging violations of the Law of War. Now, that doesn't mean that if we don't hit the 60-80 target that something has gone awry. They build these cases as they can, and based on all of the evidence, which is considerable, that they've had, that so far that's the best evidence.

Q: I'm thinking more about the people who you anticipate will not be tried. Does that mean there's not enough evidence against them?

GEN. HEMINGWAY: That means that the Office of the Chief Prosecutor has not found evidence to try them for a violation of the Law of War.

MR. WHITMAN: All right.

Q: One more, one more. I'm going to try for Pam's again because it would be very useful to have an idea of one or two of the most significant differences between this and the UCMJ.

MR. DELL'ORTO: Here's an example.

Under the Manual for Courts-Martial, and presumably under the Uniform Code of Military Justice, an accused has the right to be tried by military judge alone, at his request. Can't be directed to do that. It's a voluntary determination on his part.

Under the Manual for Military Commissions, because the statute, as it's constructed, says a military commission shall be comprised of at least five members, an accused does not have the right to request trial by military judge alone. And so all of these cases will be tried by members.

Q: What do you think the thinking was behind that? Why is that in there?

MR. DELL'ORTO: I don't know. It's in the statute, and I can't -- I just don't know.

Q: Does the DOJ rep know?

MR. ENGEL: That's in the statute that Congress put together, and --

Q: But you guys worked on it with them, right?

MR. ENGEL: But we're just obliged to follow in the rules. I don't have an answer as to why Congress did that in the statute.

Q: Okay.

And another example? Maybe one or two? (Pause.)

Hearsay obviously is different --

MR. DELL'ORTO: Yeah, hearsay is certainly different. Classified evidence procedures are pretty -- are very similar. I think you'd find that these are a tailored version of what we have in the Manual for Courts-Martial.

Certainly the appellate process is different. I will say that that's a significant difference in this respect. In the court-martial setting, the appeals go first to the service Court of Criminal Appeals, then to the Court of Appeals of the Armed Forces, then to the Supreme Court. And so you don't get to an Article III court until you get to the Supreme Court.

And under this system, your first level of appeal is the Court of Military -- the Court of Appeals or the Court of Military Commission Review. Then you're in the Article III court because you're at the D.C. Circuit, and then to the Supreme Court. So that is another very significant difference. Those are two.

Q: I think we're interested in the ways in which this is less protective of rights or more expansive in the government's power -- not to render any value judgment on who deserves what. But that's -- it's the standard it's being compared against.

GEN. HEMINGWAY: Well, let me tell you this. The goal of everybody who has been involved in the process of crafting the manual has been to design a system that meets our responsibilities under Common Article 3 and that provide a fair trial. And I am satisfied that these rules provide rules and a basis on which you can conduct a fair trial.

MR. DELL'ORTO: And I would argue that the accused is not disadvantaged under these rules as compared to the rules for courts- martial. Again, I have difficulty trying to point out major differences because I find as I try to walk through the process that there are not significant differences, particularly any significant differences that, in my view, would work to the detriment to the accused. And I think -- I mean compared to international settings, this process is a very, very fair process.

Q: Can you have civilian lawyers prosecuting under court- martial?

MR. DELL'ORTO: I don't believe that we have provisions for civilian lawyers prosecuting; certainly for defending in a court- martial setting. But I'm not sure that it couldn't be accomplished, I just haven't run across it. I mean there are ways you could commission people to participate in trials, if you needed to.

GEN. HEMINGWAY: Yeah, if you look at the World War II tribunals, there were a lot of civilian prosecutors. They happened to be wearing a uniform at the time, but they were literally drafted out of their civilian positions.

MR. DELL'ORTO: But you're not going to find that in the average court-martial case. I don't think I've ever seen it in a court- martial case. But I think there's probably the possibility that it could be done, if you had the right case.

Q: The geographic question, why it can occur outside of Guantanamo now is because Congress has approved the whole process, so you don't have to get around --

MR. DELL'ORTO: I think the view from day one was that these commissions could be tried -- I mean even before Hamdan -- that these commissions could be tried anywhere around the world. They were designed to be triable.

Q: Even in the U.S.?

MR. DELL'ORTO: In theory, yes. But certainly you look to the possibility of trying these commissions close to the battlefield, if that's -- or on the battlefield, if you have to do it. We try courts- martial on the battlefield. But certainly the statute now does not restrict us in any way geographically. And so Guantanamo being the place where they are, being the place where we have facilities, is a logical place to do them. But again, they could be tried in other places around the world.

Q: Any chance for any in Afghanistan or anything else?

MR. DELL'ORTO: Not at the moment.

MR. WHITMAN: All right, thanks very much.


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