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Rumsfeld Opening Statements Regarding Military Commissions

Aired March 21, 2002 - 14:01   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: Bill: To the Pentagon. Here's Donald Rumsfeld. Here's the announcement from the military commissions with the secretary of defense.

DONALD RUMSFELD, SECRETARY OF DEFENSE: Good afternoon.

We were reminded last week, as the coalition forces battled Taliban and Al Qaeda in the mountains, that we're still in the early stages of this dangerous and what promises to be long war.

But while much of the difficult work remains, thanks to the courage and dedication of the soldiers and sailors and airmen and marines, we've had some good success thus far.

On September 11, the terrorists attacked the United States killing thousands of innocent men, women and children. Less than a month later, the coalition countries responded, and the Taliban have been driven from power. Hundreds of Taliban and Al Qaeda terrorists have been killed, and hundreds more have been rounded up and detained by coalition forces.

This success has given us a glimpse into the future we face. As the president noted in his State of the Union address, we have found evidence in caves and tunnels and safehouses in Afghanistan of further terrorist plots to kill Americans and others, as well as terrorist efforts to acquire weapons of mass destruction -- capabilities that, if successful -- if they are successful, could help them kill not thousands more but tens of thousands more.

This is a dangerous and determined adversary for whom September 11 was an opening salvo in a long war against our country, our people and our way of life. Our task, our purpose must be to stop the terrorists, to find them, to root them out and get them off the streets, so that they cannot murder more American citizens.

One of the tools at our disposal to meet that challenge is the use of military commissions to try some of those who are captured in the conflict. Today, we are announcing some of the procedures we plan to use to carry out the president's military order.

Before discussing them, I want to mention some of the thinking that went into their development.

In the president's military order, he directed the Department of Defense to find ways to conduct commissions in a manner that would be both consistent with our national security interest and with the traditions of fairness and justice under law on which this nation was founded, the very principles that the terrorists seek to attack and destroy.

In the months since the president issued this order, we have consulted with a number of experts from around the country, in and out of government, in and out of Washington, in an effort to come up with rules and procedures that will ensure just outcomes while protecting the American people from the dangers that are, in fact, posed by terrorists.

There's a powerful tension between getting a story fast and getting a story right. That's a fact; you all know that. It's important, I believe, to try to balance those competing pressures. Often the pressures of the moment for speed tend to overpower the desirability of getting it right.

On and after September 11, in reporting the number of people who were killed here at the Pentagon, DOD was criticized for being too slow. But we got it right.

With respect to the global position device recently found in Afghanistan, DOD got it fast, but we now believe we got it wrong.

On the development of the rules for the military commissions, DOD has been characterized by some as being slow. The fact is, I have been determined to try to get right. It is an exceedingly important subject. And it's important for our country that we do it right.

I've taken some time, first because I wanted to do it well, but second because we had the time available. No individual has yet been assigned to be tried by a military commission. So despite the appetite for speed, it was more important to do it well than to do it fast.

Our approach has been based on two important principles. First, the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system in the United States and the military court system under the Uniform Code of Military Justice. So when people take note of the fact that there are differences with respect to the procedures for the military commissions, they should understand that there is a reason for it. Those two systems have different rules and procedures, yet each produces just outcomes. It follows therefore that military commissions, which will have rules and procedures that are somewhat different from either of those two systems, can also produce just outcomes despite the differences.

An observer who may be more familiar with the federal court system or the military code of justice, may try to evaluate the approach being fashioned for military commissions against what they're familiar with, and then raise questions about the rules and procedures for the military commissions; that's understandable. But I want to be clear from the start: The commissions are intended to be different. And the reason is is because the president recognized that there had to be differences to deal with the unusual situation we face, and that a different approach was needed for that reason, just as was the case during several previous conflicts in our country's history.

Our second guiding principle is related. Observers may be inclined to examine each separate provision and compare it to what they know of the federal criminal system or the court martial system, and feel that they might prefer a system that they were more comfortable with.

I suggest that no one provision should be evaluated in isolation from the others. If one steps back from examining the procedures provision by provision and, instead, drops a plumb line down through the center of them all, we believe that most people will find that, taken together, they're fair and balanced and that justice will be served in their application.

The general counsel, Jim Haynes, who has spent an enormous amount of time on this subject, and the undersecretary of defense for policy -- and needless to say, there's a mixture here of legal and political policy questions -- are here. They will come up to the podium and respond to technical questions after General Pace and I depart. They will review the procedures and answer questions. However, I do want to highlight some of the main provisions.

The accused will enjoy a presumption of innocence, will not be required to testify or incriminate themselves at the trial, will have the ability to discover information and to obtain witnesses and evidence needed for trial and be present at the public trial, cannot be tried for the same offense twice, will be provided with military defense counsel at government expense, and will also be able to hire defense counsel of their choosing at their expense.

Further, proceedings will be open unless the presiding officer determines it's necessary to close the proceedings to protect classified or sensitive information, or for another reason, namely the safety of the trial participants.

The standard for conviction will be beyond a reasonable doubt, and require a two-thirds vote of the commission. The imposition of a death penalty will require a unanimous vote of a seven-member commission.

After the trial there will be an automatic post-trial process of appeal and review. Let there be no doubt, commissions will conduct trials that are fair and impartial. At the same time, while ensuring just outcomes, the procedures are also designed to respond to the unique circumstances for which they were established.

For example, military commissions will allow the use of classified information without endangering sources and methods. In a civilian trial, prosecutors could be faced with a situation wherein in order to avoid exposing classified information, they would have to either allow defendants to go free or accept a lighter sentence, a situation that could be undesirable in the case of a hardened Taliban or Al Qaeda terrorist. The procedures allow us to protect civilian judges, juries, counsel and witnesses from ongoing terrorist threats. For example, the judge who handled the trial for the first World Trade Center attack is still under 24-hour protection by federal marshals and may be for the rest of his life. That is unacceptable in the cases likely to be assigned to the commissions.

And the procedures permit more inclusive rules of evidence. In wartime it may be difficult to locate witnesses or establish chains of custody for documents. Critical evidence that could protect the American people from dangerous terrorists should not be excluded simply because it was obtained under conditions of war.

Let me conclude. We are a nation of laws. We have been attacked by lawless terrorists. The manner in which we conduct trials under military commissions will speak volumes about our character as a nation, just as the manner in which we were attacked speaks volumes about the character of our adversaries.

We have made every reasonable effort to establish a process that is just, one that protects both the rights of the defendant to a fair trial, but also protects the rights of the American people to their security, and to live as they were meant to live in freedom and without fear of terrorists.

I want to add a word of appreciation not just to Jim Haynes, who will be up here in a moment, but to a number of non-Defense Department individuals, most of them former government officials or judicial officials of various types, who've given a great deal of time to provide advice as we work through these many important issues. I believe we have their names that are going to be passed out in the materials.

PACE: Yes, sir.

RUMSFELD: Good.

After General Pace makes his remarks, we will be happy to take one or two questions, and then we're going to bring up the experts.

General Pete Pace, United States Marine Corps?

PACE: Thank you, sir.

I am personally very comfortable with these procedures. They are, in fact, fair. They are balanced. They are just. And I am also very proud of the process that we went through to get to these procedures.

I personally sat in on hours and hours of deliberations with the secretary and his team, both from inside the Pentagon and, as he mentioned, experts from outside, and certainly experts from outside of government who were advising him. And the process itself was very reassuring to me and it should be to all of you.

PACE: It is well-suited to protect not only the rights of the accused, but also, as the secretary mentioned, the safety of the participants in the trials and also to protect our intelligence in the ongoing war on global terrorism.

And finally, and very importantly, I have absolute faith in the men and women of our armed forces who, when called upon to participate in these commissions, will do their utmost to ensure a very fair, forthright, honest trial.

Thank you, sir.

RUMSFELD: On reflection, I would like to mention the names of the individuals who helped out. They did it without compensation, because of their patriotism.

Judge Griffin Bell, former attorney general; the honorable Bill Coleman, former secretary of transportation; the honorable Lloyd Cutler, former counsel of the presidents -- two presidents; the honorable Martin Hoffman, who served as general counsel of the Department of Defense and also as secretary of the Army; Professor Bernard Meltzer; Dr. Meltzer is at University of Chicago Law School and was involved in the Nuremberg trials; the honorable Newt Minow, who was the -- President Kennedy's chairman of the Federal Communications Commission; the honorable Terry O'Donnell, who's the former Department of Defense general counsel; Judge William Webster, former federal judge, former director of CIA and FBI; and Professor Ruth Wedgewood, of Yale University and Johns Hopkins University.

As I say, none of them work for this department. They just volunteered to help out, and have been enormously helpful.

Couple of questions?

QUESTION: Mr. Secretary, there are still critics who say that, no matter how you cut it or couch it, that military trials are not as fair or as thorough as civilian trials -- trials in civilian courts.

Are you looking -- will these military trials guarantee simply more swift and sure justice than civilian courts? And are you worried about security -- someone throwing a hand grenade into a courtroom? Is that why you're going to a military trial?

RUMSFELD: There will always be critics. It's a free country. We learn from our critics. They say that all of that dialogue and discussion that takes place informs the public, informs the people in government, and it's helpful.

Are we very, very pleased and satisfied that this will produce just outcomes? You bet. We also have the ability to amend it if, for some reason, we found that there was something that we hadn't thought of. We're plowing new ground here, to a certain extent.

So the critics can be critics, and we can be government officials, you can be members of the press. We'll all do our jobs and try to do them well.

QUESTION: And regarding security, will military trials allow you to hold this, say, aboard ship, or in more secluded places where you will have more secure protection?

RUMSFELD: There is nothing in the military order that I can recall that discusses the location of the commission.

QUESTION: You've made no decision on where these will be?

RUMSFELD: We have not decided it, because we do not have any candidates yet to be tried before commissions.

RUMSFELD: Should we make this the last question? No, leave her alone. Come on.

QUESTION: There's a provision that says that you and the president must give final approval to the findings and the sentencing. Under what conditions or circumstances do you think you will be overruling what the commission has found for the sentence?

RUMSFELD: Oh, my goodness. You're asking -- first of all we don't have any candidates for the commissions.

QUESTION: What is the practical purpose of that provision?

RUMSFELD: That's what the order provided. And there it is. The president's military order provided -- left it that way. And trying to speculate as to how some accused might or might not be handled down the road I think is beyond my ability. You can try Jim Haynes on that. Maybe he has a better answer. And since I didn't answer that, I'll ask Pam (ph) to have the last question.

QUESTION: Actually I have two big questions for you. One is something...

RUMSFELD: One question, not two.

QUESTION: What if I do it in one long run-on sentence?

RUMSFELD: No. Won't work.

QUESTION: You say that you have a commitment to having an open process, and in this fact sheet that you've give us it talks about that. But at the same time you say you need to be able to present national security information that cannot be expressed openly. So how are you going to balance those two? How can the people who will be following these proceedings be assured that they are impartial and fair and not, sort of, kangaroo courts with predetermined outcomes if they cannot have access to that?

RUMSFELD: There's that word.

QUESTION: I had to raise it.

RUMSFELD: You had to get that kangaroo court in there so that people would have that in their minds.

QUESTION: (OFF-MIKE) opportunity to address it. RUMSFELD: In their minds, when we've just presented something that is the product of many months of effort, it is balanced, it is fair, it is designed to produce just outcomes, which it will. And that characterization is so far from the mark...

QUESTION: How will you make it open?

RUMSFELD: ... that I am shocked, sort of.

QUESTION: Sir, the other option is for us to just go get these quotes from people and not give you a chance to address it.

RUMSFELD: I understand.

QUESTION: So how will you balance that openness? How can it be open if at the same time you're trying to protect national security information?

RUMSFELD: Our country faces that already. We deal with classified material in courts. It's done on a regular basis, and there are ways that it can be handled so that -- I happen to know the answer to this to give it to you. It would get me down to a level of detail that I'd prefer not.

But there is one way of knowing that, is I believe that the -- I'm going to let Jim do it. It's the military counsel would be present during any period when anyone else who should not be present, because of the sensitivity of classified material, might be excluded from the process. Nonetheless, the defendant's military counsel would, in fact, be present at all times.

QUESTION: General Pace, understanding we're not going to talk about any particular instance or this is not really a hypothetical, is the Department of Defense, the Pentagon and the U.S. military, in fact, prepared to invoke the death penalty in this process against an accused person?

PACE: I'm not exactly sure why you would come specifically to me with that question. But as the rules of the order laid out, it is well within the authority of a tribunal, when a person's brought before them, if they are charged with a capital crime, if they deem it appropriate to find that person guilty and if all seven vote unanimously that that person should be put to death, then that is well within their prerogative to do. And that, of course, would go through the process that the secretary laid out, as far as who would make final decisions.

QUESTION: Can I do a follow-up on that?

RUMSFELD: Let me tell you what I'm going to do. I'm going to ask Jim Haynes and Doug Feith to come. Jim is the general counsel, Doug Feith is the undersecretary for policy. They have been -- particularly Jim, but Doug to some extent -- have been deeply involved in this process. They are able to answer a whole host of questions at a level of detail, and I would think in a manner that would be very helpful to the folks here, and I prefer to have them take over at this time.

RUMSFELD: Thank you.

QUESTION: Do you think any of those prisoners you captured are innocent?

(LAUGHTER)

HEMMER: There we have the opening remarks there about the military commissions that we had anticipated now for about four months' time. Donald Rumsfeld making the announcement there taking a few questions. We are going to dissect this a little bit deeper right now.

Two guests are going to join us here with different opinions but apparently the opinions have narrowed somewhat. Let's bring in human rights attorney Tom Malinowski here in Washington, also and constitutional lawyer Bruce Fein. Good afternoon, gentlemen. Good to have you both with us here today. When we listen to Donald Rumsfeld I know probably back in November you guys probably disagreed a lot more than you do right now. Have the differences been narrowed, Tom?

TOM MALINOWSKI, HUMAN RIGHTS WATCH: I think you know as he said, he's learned from his critics. In November the president put out an order which was very, very broad and vague and which opened up the specter of kangaroo courts and it raised a firestorm around the world, and I think a lot of people, particularly in the military realized that the reputation of military justice was at stake. I think they've done a lot to put out that fire storm.

HEMMER: How satisfactory right now, Bruce, in your opinion?

BRUCE FEIN, CONSTITUTIONAL LAWYER: I think the regulations certainly are cast to maximize the search for truth, which is what trials are about -- guilt or innocence. Indeed, in my judgment they improve in many respects upon what you could find in a civilian situation.

For example, lots of reliable evidence, especially here, that would be classified and indeed, would not -- would not be revealed and -- by the prosecutor in a civil case because it would give an alert to al Qaeda or Taliban and help them evade justice or identify sources and methods, even though it's the highest reliability, is available here to convict.

And I want to remind people of -- perhaps going back to the Rosenberg cases where the army had, through an venona (ph) had decrypted Soviet messages, although the incriminating evidence was overwhelming they were not used against the Rosenbergs, we didn't want to alert the Soviets, hey, we've been able to decipher your messages.

So, I think this is in fact an improvement on the civilian system insofar as the goal is; let's search for truth and reliable evidence.

HEMMER: Donald Rumsfeld referred to it many times. He said they have no candidates right now. Truth be known, we don't know if they will ever take place. They haven't yet. And if you want to put together the list of leading al Qaeda members you look at Osama bin Laden, and from the Taliban side it's Mullah Mohammed Omar. When you go back to the 1940s in Nuremberg and we were talking -- or listening to the Pentagon, these, you would anticipate, are the people who are the highest candidates for this.

MALINOWSKI: That's -- the big question right now is we have the rules but are there really going to be any trials? You know, those are the main candidates. We haven't captured them. At the same time there are several hundred people in detention at Guantanamo and the question is are these people going to be held indefinitely without being charged with a crime?

HEMMER: Answer this quickly; appeals limited. How so?

FEIN: Well, you can't have a direct appeal after you've got one layer of military appeal. Then there's obviously the commander-in- chief, who is the president who can intervene and change a sentence. But I think the regulations were modeled after a issue -- regulations that Franklin Roosevelt used in the trial of Nazi saboteurs during World War II and that has been interpreted and the White House counsel has said it should be interpreted to permit appeal to federal courts alleging only one basis for release unconstitutional conviction or sentence.

HEMMER: Another critique: Standards are looser. How so?

MALINOWSKI: Let me address the appeals question. I think that's really is the central critique of where they come out. There's really no right of appeal here to an independent court which is a central principle in our legal system. Essentially the Executive Branch, the president, is both the prosecutor and the judge in the final analysis. And I think that's one thing they are still getting wrong.

FEIN: I think that's misleading...

HEMMER: Standards are looser than are what?

MALINOWSKI: Well, that standard is looser than both the traditional U.S. standard the international standard. Now, in the question of the evidence, the standards are looser than the usual U.S. standard. But actually they are pretty consistent with the standard in Europe, for example or in the international war crimes court in the Hague.

FEIN: I think those observations are somewhat incomplete. For example, in the U.S. criminal justice system for long years there was never right of appeal after the trial level in federal courts. Moreover, to say that you have Habeus Corpus, which is called technically in legal jargon a collateral attack on a conviction by federal judges is not technically an appeal.

But it means that you have ultimately federal judges authorized under this order to look and examine the constitutionality of this sentence. That does all the work of an appeal and shouldn't be criticized simply because the name is different.

HEMMER: One thing we heard quite a bit in November when this was announced in terms of tribunal, now it is being labeled a commission, was that overseas there was concern in some sectors that if Americans were taken captive they wouldn't necessarily abide by the same rules that apparently the U.S. system would set up in place.

Tom, do you believe international observers watching this will be satisfied what they found out today?

MALINOWSKI: I think some damage has been done. I think there's a broad perception that these trials are going to be unfair. That perception may now be unfair. But it's out there. The president's order is also still out there. You know, if you were a dictator in China, in Burma, in Egypt, all you would have to do is photocopy the president's order and use it to justify repressive measures that would be immune from U.S. criticism. That's still a concern even though they have gone a long way towards...

FEIN: I think that's just grossly unfair. The commission's rules exceed the standards throughout the entire world in their civilian systems including Burma or (UNINTELLIGIBLE) -- by universes. To suggest that these folks will be offended, although their own standards are miles below the commission standards I think is utterly ludicrous.

They don't have any trials in China and they are not going to say, now we will be more kangaroo court-like against Falun Gong or the people of businessmen who go over there and buy economic figures and then are accused of espionage and convicted and sentenced out. So I think that international reaction been vastly exaggerated.

HEMMER: We shall sit back and see what comes of this if it indeed ever does comes to anything in terms of the commissions, but they are announced, they are public today. Bruce Fein, thanks. Tom Malinowski, thanks for coming in, guys. Appreciate our talk here.

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