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Homeland Security

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

Presenter: Legal Advisor to the Convening Authority in the DoD Office Of Military Commissions Brig. Gen. Thomas Hartmann June 30, 2008

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


MODERATOR: Well, good afternoon. And thank you for joining us for what is an important announcement and discussion.

As most of you in this room know, this country has historically used military commissions for war crime trials, dating back to the Revolutionary War and now into the 21st century. The department is committed to ensuring that both the process and the military commission proceedings themselves are as transparent as possible, within the bounds of security and safety.

That brings us to today's announcement about newly sworn charges, against one of the high-value detainees that will be forwarded to the convening authority for Military Commissions.

With us today to walk us through this -- no stranger to this room -- is Air Force Brigadier General Thomas Hartmann, who is the legal adviser to the convening authority. He is going to lay out the charges in an opening statement and then be happy to address some of your more specific questions. Following this briefing, we will post the charge sheets to the Military Commissions website on Defense LINK.

So with that, General Hartmann, thank you for joining us today.

GEN. HARTMANN: Thank you very much.

Good afternoon.

The office of the convening authority for Military Commissions has received sworn charges against Abd al-Rahim al-Nashiri, a Saudi of Yemeni descent.

The charges, which will be translated and served on Mr. al- Nashiri, allege facts surrounding his involvement in the attack on the USS Cole in Yemen on October the 12th, 2000. He is also charged with actions related to an earlier, unsuccessful attack on the USS The Sullivans on January the 3rd, 2000, and the bombing of the French supertanker the SS Limberg in the Gulf of Aden in October of 2002.

Five of the eight charges carry the maximum penalty of death. The chief prosecutor has recommended that this case be referred as capital, thereby seeking to bring this as a death penalty case.

The charges stem from events on October the 12th, 2000, as the USS Cole was refueling in the Port of Aden, Yemen. It is alleged that two men, dressed as civilians, approached the Cole in what appeared to be a small civilian garbage barge. As the men came near to the Cole, they allegedly made friendly gestures to several members aboard the ship. According to the charge sheet, at 11:22 A.M., the two men drove their boat alongside the Cole and detonated the explosives in their boat. The attack killed 17 United States Navy crew members, injured 47 other sailors and severely damaged the ship.

Mr. al-Nashiri is charged with organizing and directing these attacks. The charge sheet includes the following allegations as the basis for the charges: Mr. al-Nashiri is a member of al Qaeda and has met with Osama bin Laden on several occasions. Beginning in the summer of 1999, Mr. al-Nashiri rented apartments in Aden, Yemen, overlooking the Port of Aden and also rented houses to prepare for an attack on the USS -- on the U.S. military and its vessels. In the fall of 1999, Mr. al-Nashiri's co-conspirators delivered a small civilian boat to a safe-house and loaded the explosives into the boat.

On January 3rd, 2000, while the USS The Sullivans was refueling in the port of Aden, Mr. al-Nashiri's co-conspirators launched the explosive-laden boat to attack the American ship.

However, their boat sank shortly after launch.

After that failed attack, Mr. al-Nashiri and others salvaged the boat and the explosives and refitted the boat. Mr. al-Nashiri then traveled to Afghanistan to meet with Osama bin Laden and discuss reorganization of the plot. On October 12th, 2000, the USS Cole entered the port of Aden to refuel. While the ship was in port for refueling, two co-conspirators dressed as civilians piloted the civilian vessel alongside the ship and detonated the explosives, which killed 17 sailors, wounded 17 -- 47 sailors, and blasted a 40-foot hole in the side of the ship.

Mr. al-Nashiri also assisted in the attack on the SS Limburg, a French supertanker in the Gulf of Aden on October the 6th, 2002, resulting in the death of a crewmember and a spillage of nearly 90,000 barrels of oil into the Gulf.

Based on these allegations and others outlined in the charge sheet, Mr. al-Nashiri is charged with the following offenses: Conspiracy to violate the law of war, murder in violation of the law of war, treachery or perfidy, terrorism, destruction of property in violation of the law of war, intentionally causing serious bodily injury, providing material support to terrorism and attempted murder.

Upon receipt of the sworn charges and following completion of a legal review, the convening authority, the honorable Susan J. Crawford, will review the charges and the supporting evidence to determine in her sole discretion whether probable cause exists to refer this case for trial by military commission, and if so, whether the case should be referred as a capital case.

In the military commissions process, every accused has the following protections: To be represented by detailed military counsel assigned to him by the chief Defense counsel, as well as civilian counsel of his own selection at no expense to the government; to examine all evidence presented to a jury by the prosecution; to obtain evidence and to call witnesses on his own behalf, including expert witnesses; to cross-examine every witness called by the prosecution; to be present during the presentation of evidence; to elect not to testify at trial and to have no adverse inference drawn from that; to have a military commission of at least five military officers determine his guilt beyond a reasonable doubt by a two-thirds majority or, in the case of a capital offense, a unanimous decision of military commission composed of at least 12 members; and following review by the convening authority, once again, an appeal to the Court of Military Commissions Review initially, then through the United States Court of Appeals for the District of Columbia Circuit and to the United States Supreme Court.

These protections are guaranteed to the accused under the Military Commissions Act and they are specifically designed to ensure that every accused, particularly Mr. al-Nashiri, receives a fair trial consistent with American standards of justice.

The presentation of these charges today again highlight the extraordinarily cooperative efforts of a joint team of military and Department of Justice prosecutors and a multitude of governmental agencies which reflect the continuing progress of the military commissions. As of the swearing of these charges, the accused will be able to have a detailed military counsel assigned to him by the chief defense counsel. He will also be able to seek counsel of his own choice at his own expense.

Finally, it is important to remember that these charges are only allegations, allegations of violations under the Military Commissions Act, and that the accused is and will remain innocent unless proven guilty beyond a reasonable doubt.

MODERATOR: We'll take your questions.

Yes, sir.

Q The CIA has admitted to waterboarding Nashiri. Are you concerned that the evidence against him, any kind of confessions that he may have made were hampered, were forced by this waterboarding tactic?

GEN. HARTMANN: That's an important question, has many ramifications. All the evidentiary issues are going to be resolved in the courtroom. That is the beauty of this system, where the defense will have the opportunity for discovery, to work with their counsel, legal research, bring motions, confront witnesses, cross-examine witnesses, call their own witnesses, argue every point they want to make in front of the military judge. The prosecution will be able to do the same. And out of that clash of ideas, that clash of intensity, that clash of law and evaluation of the facts, the judge, just as in any matter of law, will make a final decision as to the validity of any piece of evidence.

So we'll leave that to the trial process, which is why the military commissions exist, to allow a fair, just, and open trial process.

Q And has he retained civilian counsel or been assigned military counsel yet? And will they have access to any information that was obtained from the interrogation sessions that included the waterboarding?

GEN. HARTMANN: He will be entitled to the detailing of a military counsel, as of today, as of the swearing of charges, so that has not occurred yet. And the defense will, as in all cases in the military commissions, have extensive discovery rights, as are spelled out in the rules of evidence for the military commissions and the rules of procedure.

Q This, I believe, is the first time charges have been placed against anybody connected to the Cole bombing. For those who are going to ask, it has almost been eight years since the event. Why has it taken this long to get to this point?

GEN. HARTMANN: Well, the global war on terror has been going on well over a decade. It's specified in the charge sheet when you see it -- the charge sheet begins by discussing events as early as 1996. It's been carried on in North America, Northern Europe, Middle East, the Far East, Africa, it's been carried on in skyscrapers and caves, through dummy corporations, forged passport, every form of evidence known to man. Millions and millions of documents have been gathered by the law enforcement community, the intelligence community, and now it's taken time to gather that evidence, organize it, collate it, and prepare it.

So the prosecutors in this case have taken advantage of the outstanding investigative work that has been done, and they have determined, in conjunction with the intelligence community and the law enforcement community, that they now have sufficient evidence to bring this case to trial. So they've sworn, as of this afternoon, charges again Mr. al-Nashiri in this case. And we'd rather do it right, we'd rather do it thoroughly, we'd rather do it fairly than quickly.

Q I want to go back to Courtney's question on the waterboarding. You made out a scenario that if this thing went to trial, this would adjudicated. But isn't it more accurate to say that Judge Crawford now is going to be reviewing whether this case should be going to trial and if the waterboarding allegations will be factored in a decision?

GEN. HARTMANN: That's correct. Whatever evidence is forwarded to us by the prosecutors will be evaluated by Judge Crawford and by me -- my pretrial advice, and then to Judge Crawford in evaluation of the case. So we'll look at all the evidence that comes to us. I won't prejudge anything and I won't try to tell you what a particular piece of evidence is, but we will have the first opportunity to review the evidence that's going forward in the referral package.

Q I just want to follow -- a layperson who doesn't follow this closely but knows about the waterboarding is going to say, "How can they even refer charges? This thing is tainted from the get-go because of the waterboarding."

GEN. HARTMANN: Right, because you have to look at the evidence. We will look at the evidence -- all the evidence that is associated with the case. While there has been an admission that there was waterboarding, there may well be other evidence in the case. That's not the only -- necessarily the only form of evidence in the case.

So it's inappropriate for us to pre-judge at a press conference or any kind of a -- an indication of one piece of evidence or the other. All the evidence will come in and it will be evaluated by the defense, by the prosecution and by the judge. That's the beauty of the trial process. It allows you to study and expose these things in open court so that everybody gets an opportunity to see it, most particularly the accused and his defense counsel.

Q Yes, but if it's referred by Judge Crawford for trial, you're assuming that it will, just for --

GEN. HARTMANN: No, I'm not assuming. I'm saying that if Mrs. Crawford refers it, then it will be dealt with that way. We will evaluate the evidence before it gets there.

Q Thanks.

Q Can you give us an idea of the timeline here, how quickly will Judge Crawford be doing her work, how soon might we reasonably expect, if there is to be a referral, it would come?

GEN. HARTMANN: Well, Mrs. Crawford has to receive the referral package. We've gotten the sworn charges just today. So the prosecution will put together a referral package which has a number of pieces of evidence in it. And then once they've prepared that, Mrs. Crawford doesn't have any specific timeline, nor do I, in terms of completing my legal review or her referral decision. But she tries to do those expeditiously, as do I.

Then if she were to make a referral decision -- if she were to make a referral decision recommending that the case go forward in any form, then the accused is to be arraigned within 30 days of that. And then within 120 days of the referral decision, the panel is to be seated -- the jury panel is to be seated.

Now, oftentimes, that 120 days slips simply because of motions and discovery and a variety of other evidentiary factors that go on with these cases.

Q I believe this is -- these are the first charges to be sworn since the Supreme Court made its ruling on detainees' rights to challenge their detention in federal court. How does that ruling affect this case?

GEN. HARTMANN: That's a good question. You're referring to the Boumediene decision. The Boumediene decision is a constitutional habeus decision related to collateral attacks on detention status. We're not associated with detention status. We are involved in the process of trying war crimes and use a trial process -- defense, prosecution, discovery, motions and so forth. So there's no direct impact.

As the attorney general said the very day that Boumediene came out, the military commissions are going to move forward. And you can see today that we're bringing the 20th case now in the charging process. There are now 20 cases in the process. So we'll move forward. There may be collateral impacts at various points along the way, but that's no surprise. And anything that happens will happen, in our case, through the commission process.

Q Earlier in the first announcement, I believe, you told us that there would be no secret trials, and that the detainees would have full access to all classified information, or evidence that was classified, if the judge allowed it.

Now I believe there was a Washington Post story, where they got reaction from the Office of Military Commissions, which told them that any such information, if they represent themselves, will be provided only in a redacted form or in a summary.

(Cross talk.)

I just wanted to clarify what you mean back then and whether what you said then still holds now.

GEN. HARTMANN: What I meant back then is what I meant back then. And it means the same thing today. There are no secret trials.

Every piece of evidence, whether classified or not, in whatever form, will be seen by the accused, if it goes to the finder of fact for a determination of guilt or innocence.

Every piece of evidence that is used, to determine the accused's guilt or innocence -- every piece of evidence that is used, to determine his sentence -- will be something he can use, confront, examine. There's no question about it.

Q But will it be redacted or will it be in summary form? Or will it be de jure?

GEN. HARTMANN: Every piece of evidence that goes to the finder of fact, in whatever form, whether it's redacted or classified or not redacted, every piece of evidence that goes to the jury will be seen by the accused, in exactly the same form that the jury sees it.

Q And is there a distinction between whether one represents themselves or whether they need counsel, in order to get full access?

GEN. HARTMANN: No. Every piece of evidence, whether they have counsel or don't have counsel, will be subject to their review, cross- examination and challenge, in the same format it's going to go to the jury. It's the law.

Q I know al-Nashiri was captured in 2002. Can you tell us how long he's been at Guantanamo Bay? And can you tell us his current state? Will he be evaluated mentally before he goes to trial? A lot of these guys are claiming that they're not mentally fit.

GEN. HARTMANN: I don't know how long he's been at Guantanamo Bay. And to the extent that his defense counsel or anyone thinks that that's an appropriate approach, to have him evaluated, they can make a request for that. But I can't conjecture as to what might happen in that regard.

Q Since we haven't seen the charges yet, it sounds as if one of the charges is specifically against this French merchant vessel.


Q Why is U.S. Military Commissions swearing charges against an incident that happened against the French?

GEN. HARTMANN: You'll see, as you look through the conspiracy charges, that there are 42 overt acts. And I think the last two deal with the SS Limburg. And it deals with an allegation that there was an attack on commercial shipping, an attempt to engage in attacks on commercial shipping, in the Gulf of Aden and in the Straits of Hormuz.

And this was a comprehensive effort, as charged in the charge sheet. And therefore an attack on a civilian vessel, in that context, is a violation of the law of war, as charged here.

So that's a continuation of the conspiracy from 1996 all the way on to October 2002.

Q So it's essentially it's a larger charge against attacking vessels in the Gulf, but it -- wasn't he charged -- you mentioned that there was another charge that was already against that and that --

GEN. HARTMANN: No, the conspiracy charge --

Q I mean, not having the charge sheet before the briefing, it's hard to ask the questions -- an informed question, but --


Yeah, the conspiracy charge has 42 overt acts, and they span from 1996, dealing with associations with Osama bin Laden all the way out to October 6th, 2002, with the attack on the SS Limburg. So the SS Limburg follows on the allegations in regard to The Sullivans in January of 2002 and the Cole in October of 2000 and then finally the last part of the conspiracy or the effort to engage in a conspiracy is charged with the Limburg.

Q You mentioned that the defense, excuse me, will have access to all the evidence. Will the public have access to all that evidence?

GEN. HARTMANN: Well, the public won't have access to all the evidence just as they wouldn't in a normal trial. The public will have access to whatever evidence the judge determines to release. In our practice, the judges determine what it is that they're going to release in terms of motions and so forth. Now, if you're sitting in the court room, you'll see the evidence to the extent that it's talked about or to the extent that it's put up on the screen or if you're at Guantanamo Bay in one of the media centers, you'll be able to see that as a media person, but it won't be available to the public generally. It's not -- evidence is not ordinarily made available to the public, even at a civilian trial or in a military court martial trial, so it wouldn't be in this case.


Q Nashiri is also involved somewhat in the U.S. embassy bombings. Is there a reason those -- that's not within these charges as well?

GEN. HARTMANN: The determination of what to charge and when to charge and who to charge is made by the prosecutors, and the prosecutors made that determination in this case, and that's how they think that they have the strongest case to proceed based upon their evaluation of the evidence and their evaluation of the law. So we have to respect that decision, and that's where we are today.


Q To double check, this is the first time a specific Cole attack defendant has been brought for trial?

GEN. HARTMANN: This is the first there have been specific charges since the --

Q Yeah. And what, you know, the media likes to put labels on people.

Was it -- is it accurate to say he was the mastermind of the Cole attack or a primary planner? What would be more accurate?

GEN. HARTMANN: I'm not going to say either of those. I'm going to say he helped to plan and organize and direct the attacks.

Q He helped to --

Q Do the charge sheets make any distinction as to his -- the prominence of his role?

GEN. HARTMANN: No, they don't.

Q They don't. Then why not charge any of the others that were involved in the Cole planning, similar to the 9/11 --

GEN. HARTMANN: Well, we had -- (inaudible) -- in the custody of the United States. As to others, the prosecutors make those decisions about who they think is the most appropriate to charge based upon their evaluation of the evidence, their evaluation of the law and their obligations to prove things beyond a reasonable doubt. So we look at all those things very specifically with the law enforcement and the intelligence community. So I certainly wouldn't want to guess about why they made a particular determination. That's their decision, their discretion to make that decision. And that's how they've proceeded today.

Q One other -- I think you mentioned that he's a Saudi?


Q Was the Saudi government informed of these charges in advance? Did they express any -- I mean, any feedback on the fact that a Saudi national is now facing the death penalty in America?

GEN. HARTMANN: I believe they were informed in advance, but I don't know what their reaction was.

Q Your office -- your position, the legal adviser, does that impact on some of the cases, I believe you were -- I'm not sure what the terminology is, but there was a perceived conflict of interest that was ruled by one of judges -- down at Guantanamo, one of the cases -- am I correct in that?


Q Can you talk to me about what that means about what the status of the office of legal adviser, whether there really is a conflict in your position, in that you have a dual status, you know --

GEN. HARTMANN: Well, the role of the legal adviser is very similar to the role of the staff judge advocate. It's a role that's been the way the military runs legal offices for at least 60 years and perhaps longer than that, but since the modern UCMJ was put into effect.

And the chief -- the legal adviser supervises the chief prosecutor or the head of military justice in any normal legal office and he also gives independent and informed advice to the convening authority. So that's my role here. Overarching, above all that, is to make sure that the system is fair and just. And in that regard, in particular in this system, we have an obligation to make sure that we appropriately resource both the prosecution and the defense.

And we've done a dramatic job in trying to make sure that the defense is properly resourced.

In fact, the deputy secretary of Defense has determined in the last two months that providing fair, just and open commissions is the number one legal services priority in this -- in the entire Department of Defense. And we are resourcing the defense, we're doubling the size of the defense counsel, we're doubling the number of defense paralegals, we're doubling the number of prosecutors and doubling the numbers of paralegals for the prosecution's side.

So the role of the legal adviser focuses on making sure that the prosecution is doing its job, that the defense is properly resourced, that the legal adviser is giving the proper advice to the convening authority and that that entire system is designed to be a just one, a fair one so that we'll have reliable and honorable results.

Q So in that particular case, how has your role changed now because of this?

GEN. HARTMANN: Well, in the case you're referring to, I'm not involved in that case anymore. But in every other case, I remain involved.

Any other questions? Yes?

Q If Nashiri and his counsel ask to face the interrogators -- CIA interrogators who waterboarded him, will that be allowed in the court? Will they be allowed to say -- to call them as witness?

GEN. HARTMANN: That's a question that they should bring up in the court and allow the judge to make a determination. That would be a discovery matter, and the judge will make a determination as a matter of law on what discovery they're entitled to have, if they're entitled to meet such interrogators or interview them or ask them questions. All those kinds of things are the kinds of things you would expect them to ask in the military commission process, inside the courtroom of the judge, and the judge, wearing his black robe, will make -- or her black robe -- will make a final determination on that.

Any other questions?

Thank you.


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