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February 12, 2008 The Diane Rehm Show (NPR), 10:00 AM
DIANE REHM: But before we begin our conversation, here in the studio, we’re joined by Air Force Brigadier General Thomas Hartmann. He’s legal adviser to the Defense Department’s Office of Military Commissions.
Good morning to you, General. Thanks for joining us.
BRIGADIER GENERAL THOMAS HARTMANN [U.S. Air Force]: Good morning, Diane.
REHM: General, it's been a protracted process, but this is the first time that charges have been brought against men alleged to be key figures in the 9/11 attacks. Can you explain to the audience exactly what the charges are?
HARTMANN: Yes, Diane. The charges are conspiracy as the first offense and there are 169 acts alleged in connection with that conspiracy beginning in 1996 and continuing through September 11th, 2001, and then in addition to the conspiracy charges, the six people are charged with murder in violation of the law of war, attacking civilians and civilian objects, intentionally causing serious bodily injury, destruction of propertyin violation of the law of war, terrorism and providing material support to terrorism.
REHM: I understand that a military commission system will be used. Is that correct?
HARTMANN: That’s correct, Diane, and it’s not new to the American system of justice. We’ve had military commissions since General George Washington. Andrew Jackson used them during the War of 1812; they were used for the conspirators following President Lincoln’s assassination and they were used quite regularly following the Second World War.
REHM: Can you explain to us briefly how a military commission system would differ from a civilian trial?
HARTMANN: The differences are relatively minor in the sense that you will have a jury, we call it a panel. If it’s a capital case, it’s a jury of at least 12 people; otherwise, it’s a jury of at least five people. You have a defense counsel. You have prosecutors. You have a judge. All those people are military by and large, but the accused, in addition to his right to a detailed military defense counsel, also has the right to civilian counsel at his own expense. You have a court reporter; it looks the same. You have extraordinary rights for the accused. Those rights include many of the rights that are common to the American practice of law and American expectation, the right to remain silent and to have no adverse inference, the right to counsel, the right to see the evidence that the prosecution will use against them and the right to call witnesses, including expert witnesses, the right to cross-examine, the right to be present during the presentation of evidence.
And in this case, the accused will have a right of appeal automatically if he’s found guilty, if any of the accused are found guilty, they have an automatic right to appeal. That doesn’t exist normally in the civilian practice, but it does exists in this practice; it’s a unique right. In addition in this system, the convening authority, Mrs. Crawford, if there is a finding of guilt or a sentence, she can reduce the sentence or she can even dismiss the charge, which is another amazing right that’s available to the accused in these cases that simply isn’t available in the civilian world.
So, in many ways, we’ve tried to have this system match the military justice system, particularly with regard to the rights of the defendants and those are the same rights that we provide to our uniformed soldiers, sailors, airmen and Marines and that’s quite an undertaking.
REHM: Have any of those who have been charged been counseled thus far by attorneys? Have they had meetings? Have they met with them one-on-one?
HARTMANN: Their right to counsel, Diane, went into effect yesterday when charges were sworn against them. Prior to that, they were in a detention status, which had nothing to do with the military commissions. They were being detained on Guantanamo Bay as unlawful alien enemy combatants who posed a danger to our soldiers on the battlefield. Now, they’re being moved into a different process, the military commission process, which deals with allegations of violations of the law of war, violations of the Military Commission Act.
So this is the very beginning of the process for them as of yesterday, and they will have attorneys assigned to them, detailed to them by the chief defense counsel and I want to emphasize that we’re making available resources to the defense. They have 11 attorneys on their staff. They have the same number of paralegals that we have on the prosecution side and we are working to get them more attorneys. We have attorneys with the appropriate levels of clearance for them to assign to these cases.
So I expect that relatively soon some action will be made with regard to that effort to get them counsel.
REHM: General Hartmann, yesterday in The New York Times, sorry, this morning in The New York Times, Colonel Steven David, the chief military defense lawyer for these Guantanamo cases is quoted as saying and he has the responsibility to provide the detainees with military lawyers, says he does not have six lawyers available to take the cases. But you’re saying there are sufficient lawyers?
HARTMANN: Yes. Well, he’ll make the decision on detailing, but we’ve made an extraordinary effort to get counsel to that side and to make them available with the appropriate security clearances. In addition, there are more lawyers that are in the pipeline that have specific reporting dates in April and May.
So I’ve got the count right in front of me and it’s 11 available, including those who could come TDY, on a temporary duty status to begin supporting these people. So we’ve made a very strong effort to get counsel available from the various uniformed services, in addition, they’ve got the same number of paralegals that we do. We’re making analysts available to them. We’ve added another analyst today. We’ll add another four analysts by the end of the month.
So we’re really working hard to make sure that the defense has the resources it thinks it needs.
REHM: Do those defense counsels that you say will be made available have experience in capital cases?
HARTMANN: I don’t know the answer to that question off the top of my head, Diane, but in the military, the detailing obligation is to provide people who are qualified and certified under the Uniform Code of Military Justice who have passed the bar, who’ve gone to law school and who’ve passed the judge advocate courses, those are the same detailings that we make to our soldiers, sailors, airmen and Marines in the field, and I think that everybody would recognize that those people are our national treasure. So we’re willing to give these accused virtually the same rights we make available to those people who are in uniform defending the country.
REHM: Where will these trials be conducted? And will the defendants be charged as a group? Or will they be charged individually?
HARTMANN: Diane, the cases will occur. The trials will occur at Guantanamo Bay. The chief prosecutor has requested that the charges be referred jointly so that it would be as six-person trial.
REHM: Isn’t that rather unusual?
HARTMANN: Well, it’s not unusual in the federal system and not unusual in cases where the facts, charges, evidence and related procedures are common, and so that’s a decision that Judge Crawford will evaluate and that the military judge will evaluate if there’s a motion in that regard, but it’s not uncommon at all to have a joint trial.
REHM: And will have the public have access?
HARTMANN: The public will not have direct access. The public will have access through the press. Guantanamo is a unique place; it’s in the middle of the Caribbean. It’s a controlled military base as are almost all of our military bases; it has important missions there. It’s a very difficult place to get to. So trying to bring the public there into such a small location would be virtually impossible.
REHM: Will there be television cameras?
HARTMANN: There will not be television. Military trials and federal trials are not televised. We will make a special unique effort. We’re working on a special and unique effort to try and do something for the 7,500 victim family members who might be interested in seeing it in the United States in a secured environment.
REHM: And what about print reporters?
HARTMANN: Print reporters – we’ve had more than 100 print reporters go to Guantanamo to watch the trials. They can go into the courtroom or they can go into the video overflow and they’ve taken great advantage of that and we’re glad they do. Non-governmental organizations like Human Rights Watch, Human Rights First, ACLU, the American Bar Association, have also taken advantage of that.
REHM: But will they be allowed at this trial?
HARTMANN: Yes. Yes.
REHM: Okay. And finally, how long would you expect such a trial to take?
HARTMANN: I don’t know the answer to that, Diane. Trials take long times and the reason they take a long time – we’re far more interested in justice than in speed and it’s important that we make available to the defense their rights, and so we’re going to insist that the defense and the accused have all the rights that are provided under the Military Commission Act and we’re going to insist on that.
REHM: Air Force Brigadier General Thomas Hartmann. He’s legal adviser to the Defense Department’s Office of Military Commissions.
Thank you so much, sir.
HARTMANN: Glad to be here, Diane.
February 12, 2008 The Diane Rehm Show (NPR), 10:00 AM
DIANE REHM: But before we begin our conversation, here in the studio, we’re joined by Air Force Brigadier General Thomas Hartmann. He’s legal adviser to the Defense Department’s Office of Military Commissions.
Good morning to you, General. Thanks for joining us.
BRIGADIER GENERAL THOMAS HARTMANN [U.S. Air Force]: Good morning, Diane.
REHM: General, it's been a protracted process, but this is the first time that charges have been brought against men alleged to be key figures in the 9/11 attacks. Can you explain to the audience exactly what the charges are?
HARTMANN: Yes, Diane. The charges are conspiracy as the first offense and there are 169 acts alleged in connection with that conspiracy beginning in 1996 and continuing through September 11th, 2001, and then in addition to the conspiracy charges, the six people are charged with murder in violation of the law of war, attacking civilians and civilian objects, intentionally causing serious bodily injury, destruction of propertyin violation of the law of war, terrorism and providing material support to terrorism.
REHM: I understand that a military commission system will be used. Is that correct?
HARTMANN: That’s correct, Diane, and it’s not new to the American system of justice. We’ve had military commissions since General George Washington. Andrew Jackson used them during the War of 1812; they were used for the conspirators following President Lincoln’s assassination and they were used quite regularly following the Second World War.
REHM: Can you explain to us briefly how a military commission system would differ from a civilian trial?
HARTMANN: The differences are relatively minor in the sense that you will have a jury, we call it a panel. If it’s a capital case, it’s a jury of at least 12 people; otherwise, it’s a jury of at least five people. You have a defense counsel. You have prosecutors. You have a judge. All those people are military by and large, but the accused, in addition to his right to a detailed military defense counsel, also has the right to civilian counsel at his own expense. You have a court reporter; it looks the same. You have extraordinary rights for the accused. Those rights include many of the rights that are common to the American practice of law and American expectation, the right to remain silent and to have no adverse inference, the right to counsel, the right to see the evidence that the prosecution will use against them and the right to call witnesses, including expert witnesses, the right to cross-examine, the right to be present during the presentation of evidence.
And in this case, the accused will have a right of appeal automatically if he’s found guilty, if any of the accused are found guilty, they have an automatic right to appeal. That doesn’t exist normally in the civilian practice, but it does exists in this practice; it’s a unique right. In addition in this system, the convening authority, Mrs. Crawford, if there is a finding of guilt or a sentence, she can reduce the sentence or she can even dismiss the charge, which is another amazing right that’s available to the accused in these cases that simply isn’t available in the civilian world.
So, in many ways, we’ve tried to have this system match the military justice system, particularly with regard to the rights of the defendants and those are the same rights that we provide to our uniformed soldiers, sailors, airmen and Marines and that’s quite an undertaking.
REHM: Have any of those who have been charged been counseled thus far by attorneys? Have they had meetings? Have they met with them one-on-one?
HARTMANN: Their right to counsel, Diane, went into effect yesterday when charges were sworn against them. Prior to that, they were in a detention status, which had nothing to do with the military commissions. They were being detained on Guantanamo Bay as unlawful alien enemy combatants who posed a danger to our soldiers on the battlefield. Now, they’re being moved into a different process, the military commission process, which deals with allegations of violations of the law of war, violations of the Military Commission Act.
So this is the very beginning of the process for them as of yesterday, and they will have attorneys assigned to them, detailed to them by the chief defense counsel and I want to emphasize that we’re making available resources to the defense. They have 11 attorneys on their staff. They have the same number of paralegals that we have on the prosecution side and we are working to get them more attorneys. We have attorneys with the appropriate levels of clearance for them to assign to these cases.
So I expect that relatively soon some action will be made with regard to that effort to get them counsel.
REHM: General Hartmann, yesterday in The New York Times, sorry, this morning in The New York Times, Colonel Steven David, the chief military defense lawyer for these Guantanamo cases is quoted as saying and he has the responsibility to provide the detainees with military lawyers, says he does not have six lawyers available to take the cases. But you’re saying there are sufficient lawyers?
HARTMANN: Yes. Well, he’ll make the decision on detailing, but we’ve made an extraordinary effort to get counsel to that side and to make them available with the appropriate security clearances. In addition, there are more lawyers that are in the pipeline that have specific reporting dates in April and May.
So I’ve got the count right in front of me and it’s 11 available, including those who could come TDY, on a temporary duty status to begin supporting these people. So we’ve made a very strong effort to get counsel available from the various uniformed services, in addition, they’ve got the same number of paralegals that we do. We’re making analysts available to them. We’ve added another analyst today. We’ll add another four analysts by the end of the month.
So we’re really working hard to make sure that the defense has the resources it thinks it needs.
REHM: Do those defense counsels that you say will be made available have experience in capital cases?
HARTMANN: I don’t know the answer to that question off the top of my head, Diane, but in the military, the detailing obligation is to provide people who are qualified and certified under the Uniform Code of Military Justice who have passed the bar, who’ve gone to law school and who’ve passed the judge advocate courses, those are the same detailings that we make to our soldiers, sailors, airmen and Marines in the field, and I think that everybody would recognize that those people are our national treasure. So we’re willing to give these accused virtually the same rights we make available to those people who are in uniform defending the country.
REHM: Where will these trials be conducted? And will the defendants be charged as a group? Or will they be charged individually?
HARTMANN: Diane, the cases will occur. The trials will occur at Guantanamo Bay. The chief prosecutor has requested that the charges be referred jointly so that it would be as six-person trial.
REHM: Isn’t that rather unusual?
HARTMANN: Well, it’s not unusual in the federal system and not unusual in cases where the facts, charges, evidence and related procedures are common, and so that’s a decision that Judge Crawford will evaluate and that the military judge will evaluate if there’s a motion in that regard, but it’s not uncommon at all to have a joint trial.
REHM: And will have the public have access?
HARTMANN: The public will not have direct access. The public will have access through the press. Guantanamo is a unique place; it’s in the middle of the Caribbean. It’s a controlled military base as are almost all of our military bases; it has important missions there. It’s a very difficult place to get to. So trying to bring the public there into such a small location would be virtually impossible.
REHM: Will there be television cameras?
HARTMANN: There will not be television. Military trials and federal trials are not televised. We will make a special unique effort. We’re working on a special and unique effort to try and do something for the 7,500 victim family members who might be interested in seeing it in the United States in a secured environment.
REHM: And what about print reporters?
HARTMANN: Print reporters – we’ve had more than 100 print reporters go to Guantanamo to watch the trials. They can go into the courtroom or they can go into the video overflow and they’ve taken great advantage of that and we’re glad they do. Non-governmental organizations like Human Rights Watch, Human Rights First, ACLU, the American Bar Association, have also taken advantage of that.
REHM: But will they be allowed at this trial?
HARTMANN: Yes. Yes.
REHM: Okay. And finally, how long would you expect such a trial to take?
HARTMANN: I don’t know the answer to that, Diane. Trials take long times and the reason they take a long time – we’re far more interested in justice than in speed and it’s important that we make available to the defense their rights, and so we’re going to insist that the defense and the accused have all the rights that are provided under the Military Commission Act and we’re going to insist on that.
REHM: Air Force Brigadier General Thomas Hartmann. He’s legal adviser to the Defense Department’s Office of Military Commissions.
Thank you so much, sir.
HARTMANN: Glad to be here, Diane.