Officials Explain Military Commissions That Will Try Detainees
By Paul Stone
American Forces Press Service
WASHINGTON, Jan. 21, 2004 – Human rights organizations will closely monitor
every step they take. Judicial activists will analyze everything that takes
place in the courtroom. And both U.S. and international news organizations will
report the day-to-day proceedings they will be a part of.
In short, the eyes of the world will be upon two retired generals working with
the military commissions formed to try detainees being held at Guantanamo Bay,
Cuba.
Yet despite this scrutiny – despite the very controversial nature of their
assignments – neither Air Force Brig. Gen. Thomas L. Hemingway nor retired Army
Maj. Gen. John D. Altenburg Jr. are a bit hesitant about their pivotal roles.
Hemingway retired in 1996 and was recalled to active duty in 2003, while
Altenburg, who retired in 2001, is working in a civilian status with the
commission.
Altenburg served for 28 years as an Army lawyer, culminating as the Army's
assistant judge advocate general from 1997 to 2001. Before retiring after 31
years of service, Hemingway served as a senior judge on the Air Force Court of
Military Review and as director of the Air Force Judiciary.
"I was enjoying my retired life," Hemingway said. "But the nation's at war, and
when someone who has worn the uniform as long as I have is asked to serve, from
my point of view there's only one answer, and that's 'I'm ready.'"
Altenburg said he accepted the assignment "because somebody needs to do this
and to do this well, because it can and will affect the development of
international law in general and the law of armed conflict specifically."
Altenburg is serving as the appointing authority for military commissions.
Hemingway is serving as the legal adviser to the appointing authority. During a
recent interview, the two generals explained their military commission roles.
Hemingway said his primary responsibility is to supervise the staff of the
appointing authority. That staff will handle legal advice and logistical
support for the prosecutors and defense counsel. He will also be responsible
for procedures such as developing instructions and orders.
"Once these (cases) move through the system, my office will be writing advice
to go to the appointing authority … to make sure he has the information he
needs to make an effective decision," Hemingway said. This will include advice
on such matters as whether a case should be tried, or whether a case that has
been tried should be sent back for rehearing.
Altenburg described his role as that of a decision-maker. "While Gen. Hemingway
is responsible for putting together all the information and writing legal
advice, it's my job to decide which cases go to trial, which cases will be
open, and which cases – perhaps because the evidence will be classified – will
have to be closed in part," Altenburg explained. "I would make a decision if
the defense (counsel) wanted to negotiate a pre-trial agreement and plea. I'd
also rule on motions by the defense before the commissions."
The president has determined that six detainees are eligible to be tried by
military commissions, though the actual decision whether to charge someone will
be made by Altenburg. Hemingway declined to estimate when trials might begin,
and he described his and Altenburg's appointments as the next logical step in
the military commissions process.
Altenburg said the setting for the trials will be similar to any courtroom in
the United States. There will be a place for the witness to testify; an area
for the commission members -- who in the civilian system would be called jurors
-- including the presiding officer; a table for the accused and the defense
lawyer; and one for the prosecution. A court reporter also will be present.
He said the trials would take place in a dignified setting appropriate to the
process of justice.
More important to both generals, however, is the fairness of the process.
Altenburg said the trials will be conducted in much the same manner as a court-
martial, which he said is very similar to any criminal case in state or federal
courts.
"There will be witnesses called by the prosecutor, (who) will conduct a direct
examination," he explained. "The defense counsel will then have the opportunity
to cross-examine. There might be redirect or re-cross. And I would imagine that
if commission members have questions that they may ask questions."
And both generals expect both prosecutors and defense attorneys to be strong
advocates for their clients. Indeed, neither was surprised by the fact that
five military lawyers assigned to defend the detainees are filing a friend-of-
the-court brief to the U.S. Supreme Court, in which they argue that prisoners
convicted by military commissions should have to the right to appeal to
civilian courts.
"I can't respond to the brief because I haven't seen it," Hemingway said, "but
it doesn't surprise me. We've told the public all along that military defense
counsels are going to be zealous advocates for their clients. And I think this
is simply a manifestation of that fact."
Hemingway said that the members of the commissions will be military officers,
and that the presiding officer "will be a judge advocate who has extensive
experience as a trial judge." The commissions will consist of three to seven
members. Verdicts of guilty or not guilty and sentences will require a two-
thirds majority, unless the case involves the death penalty, which would
require a unanimous sentencing decision.
"And on top of that, we have also established a review panel," Hemingway
emphasized, "and we have distinguished lawyers and jurists who have been
appointed by the secretary (Secretary of Defense Donald H. Rumsfeld) to perform
that function. So there are provisions for everything from pretrial activity
through the final appellate process."
The review panel will hear appeals from military commission decisions. If the
panel finds that a material error of law has occurred, the panel will return
the case for further proceedings, which may include dismissal of charges. The
panel also may make recommendations to Rumsfeld regarding disposition of cases,
to including sentencing issues.
Although all review panel members will be civilians, they will be commissioned
as Army major generals during their service.
Four review panel members already have been named, and Hemingway said two more
may be added. He said only three members will review a particular case, and
that it will be up to the review panel members to determine which three sit in
on a particular case.
Hemingway pointed out that the review panel members will serve fixed, two-year
terms, and said this adds to the fairness of the process.
"One of the indicators that outside commentators were looking for (concerning
the panel members') independence was a fixed term – that they're not beholden
to any executive authority for continued tenure because of particular
opinions," he said.
Hemingway pointed out that that fairness of the process also is boosted by
limitations built into the review processes.
"It's important to know that the review authorities -- neither the review
panel, nor the secretary nor the president -- can overturn a finding of not
guilty, and they cannot increase a sentence any more than what has been
adjudged by the commission," he said.
Altenburg said appointment of the review panel has helped quell some criticism
of the commissions, but indicated there continue to be many perspectives.
"There are some who argue simply that there should be courts-martial, not
commissions, and they'd be satisfied with courts-martial in the military
system," he said. "And others insist on civilian sector jurisprudence. The fact
of the matter is this is clearly within the tools of the commander in chief of
the armed forces to use military commissions for violations of the law of war,
when we're at war."
Although both men agreed similarities exist between the military commissions
and the proceedings following World War II, they said the military commissions
process is much more detailed.
"The rules of evidence are more refined -- the standard of proof beyond a
reasonable doubt, no inference from remaining silent – these are consistent
with today's legal process," Hemingway said.
And Altenburg pointed out that the rules for the military commissions flow more
from the Uniform Code of Military Justice than what occurred after World War
II, and that the UCMJ often has broken new legal ground.
"It's interesting to point out that the 1950 Uniform Code of Military Justice
codified the right (of an accused person) to remain silent, something that
didn't become a constitutional right in this country until 1966," Altenburg
said. "In many ways the uniform code, in spite of its reputation in certain
circles, has foreshadowed lots of the improvements in the criminal process in
the United States."
And both said they believe the military commissions process likely will be no
exception to breaking new judicial ground.
"What we want to make sure we do is have fair trials that stand as a model for
the international community, in terms of the implementation of the laws of
war," Altenburg said, "which will affect all of our people on the battlefield."
Biography:
Secretary of
Defense Donald H. Rumsfeld
Maj.
Gen. John D. Altenburg Jr.
Brig. Gen. Thomas L.
Hemingway
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Guidelines for Military Commissions
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Commissions Trying Terrorists
Related Web Site:
Military
Commissions
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