DOJ/DOD Press Conference on the Gitmo Decisions

DOD and DOJ had a joint press conference on the Gitmo decisions today. It was on background–so the attribution below is to a senior DOJ official and a senior DOD official. This is just a liveblog transcript–and should be considered a VERY rough approximation.

Sr. DOJ Official: highlight a few things: Decisions to proceed with prosecutions in federal court and reformed military commissions. Bring terrorists to justice, bringing all tools at our disposal to the fight and to the cause of bringing terrorists to justice. Coordinated and cooperative effort by prosecutors. Result of extensive consultations.

Sr. DOD Official: Making good progress toward closing Gitmo, finding new location. Now that review process for these 10 or so has been completed, we have a green light to move forward with the cases. Prosecutors will have to make decisions about how fast to move forward.

LAT: Evidentiary issues: Is statements were made during interrogations of these guys, if that’s going to be from an FBI clean team. If you’re trying to build a case without those, what will you be able to use, incl intercepts?

DOJ: Not going to be asking about evidence. Indictments will be forthcoming. That process has other elements to it.

LAT: Intercepts and so on?

DOJ: Both fora provide for use of classified evidence. CIPA statute. We feel that there’s ample protections for the use of classified information.

DOD: What evidence is offered in any particular prosecution is up to the judges in any particular case.

Savage: We’ve heard various numbers of current population of Gitmo.

DOJ: no numbers

FDL: Questions about competency questions; will detainees be able to get information on their medical condition? What of Ramzi bin al-Shibh’s current pending competency hearing?

DOD: Won’t speculate, these issues will be decided by judges.

Isikoff: Will they get the full story about how they were treated. In death penalty phase of trial?

DOJ: May well be raised in both fora, for the judges to rule upon. We believe that detainees can get a fair trial in both fora.

Gerstein: Immigration status of detainees. Can you address one of the risks of Admin not seeking preventative detention statute in case of acquittal.

DOD: We are defending the law of war detention of the current Gitmo population in the habeas litigation they’ve all brought. We’re confident we have the authority to detain someone ho presents a threat. SCOTUS in Hamdi has said we have the authority. So we’re confident that under a bunch of different authorities we will be able to continue to hold these detainees.

DOJ: There’s an established protocol for the purpose of trial. Has been used in many instances wrt extraditions, was used in matter of Ghailani.

Toronto Star: Walk me through thinking about Omar Khadr, whether his age was a consideration, and whether there was communication with Canadian govt. Still possibility that Khadr could be repatriated to Canada.

DOD: Don’t want to speculate about outcome of pending prosecutions in commissions. We have this as a pending case. Status of it, it’s a ways off. There’s a way to go in the case. I’m sure the prosecutors will consider all their options wrt how they handle the case.

WSJ: How the decisions were made on Article III trials and who goes to Military Commissions? There’s a feeling that MCs you have lesser evidence.

DOJ: Absolutely there is no sense that MCs are any lesser form of justice. There is an absolute legitimate role for MCs to play. Decisions that were announced today indicate process that we went through. Very lengthy and comprehensive process.

DOD: The whole process on MCs we went through with Congress was so that MCs would not be perceived as lesser justice. Quality of evidence, location. Led to decisions–such as to keep Nashiri in the Commissions context. Cole bombing was directed as US Navy. Victims were sailors. That is the type of offense that we think should be tried in commissions context, irrespective of how easy or how hard it is to obtain a conviction.

WSJ: So you’re saying that was the deciding factor?

DOD: Certainly wrt that, identity of victims and location of crime.

DOJ Factors in protocol are traditional factors, kind of work prosecutors do every day in making forum decisions, whether to bring federal or state case, whether federal or UCMJ. These were case by case decisions, no cookie cutter approach.

BBC: You say this brings closure of Gitmo one step closer. Deadline of January 22. Suggestions are it’s not.

DOD: We’re making good progress. It’s a matter of time before we can begin to consult with Members of Congress and inform the public, we’re making good progress along that road. The President is just as committed to closing Gitmo as he was when he took office. We all believe that large bureaucracies like this work best with deadlines. We’re working hard to make progress toward closing Gitmo.

DOJ: AG has said it’s going to be hard to meet that deadline.

DOD: 8th anniversary of when Bush signed MC EO. We’ve announced 5 admin rule changes in May. Bipartisan basis with Congress, w/help of Armed Services Committee, we have a process that now exists. It’s the strong preference of this Admin that people be brought to justice for their crimes. Two viable fora for trying alleged terrorists. We’ve done this in 10 months, which is not a lot of time.

Fox: With the case in NY, how soon do you plan to bring before a Grand Jury? Would it be before the 45 days notice to Congress.

DOJ: We’ll move expeditiously to take the next steps in this prosecution. Presenting evidence will be done by prosecutors. We’ll be fulfilling the statutory requirements, consultation with local authorities–some of that has already been done. Complying of course with the 45 day notice requirement.

Fox: It sounds like you’re not sure when an indictment will come. If that’s so, why not wait until then to make this announcement?

DOJ: In terms of timing on this announcement. We had already notified military commission judges, that continuance expires on Monday, we had intended to inform them of our decision.

5 replies
  1. Mary says:

    You’ve kept up with a lot this morning, thank you.

    No suprise, but no questions on whether the military commissions will include war crimes trials for Article 147 violations and no questions on whether or not the trials represent the DOJ’s position that “no one leaves GITMO innocent” as revealed in other habeas proceedings.

    What are they doing with Susan Crawford’s earlier rulings, do we know?

    And the precedent they are setting by ignoring the CAP suggestion of non-battlefield detainees like al-Nashiri (caught in UAE supposedly) and trying crimes like conspiracy that a former Nuremberg prosecutor and current Sup Ct Justice has said cannot be tried as military crimes?

    • emptywheel says:

      I asked DOJ earlier why Qahtani and Abu ZUbaydah weren’t included among those charged for 9/11 and was told that they haven’t been considered yet.

      Uh huh.

      But that’s as close as they are to giving an answer on that Crawford issue.

      They did sort of address the “what happens if they’re acquitted”–it was in response to Gerstein above. They’re still saying they have, under Hamdi, to detain someone so long as the war continues. So the implication is they will be detained even if they’re acquirred.

      • Mary says:

        Except that Hamdi was initiated as a battlefield detention (many of the GITMO cases are not) and the determination to hold for the protection of the United States has to be pretty much nullified by a judicial determination that they were not legitimate threats when detained.

        IOW, the question at that point is one that Hamdi never addressed, what powers do you have to detain a non-battlefield detainee who was innocent and whose only threat to the US is based on nothing he did prior to detention, but instead on the facts of his detentention and treatment in detention. Not to argue with you, but rather shaking my head over the shallowness of the response.

        Seems to me they already have a military commission determination with respect AZ and Qhatani and I hope in some of the public pressers Obama or Gibbs get pushed on that – do you respect the prior findings of the GITMO commissions judge that AZ and Qhatani can’t be tried due to their torture in US hands? What DOJ/DOD says isn’t nearly as important imo as making HOlder or Obama or Gibbs wrap their lips around the “even though the military judge made rulings that we can’t go forward because of torture, as The Decider, our President, is overruling her determination on torture.

        On Nashiri, I understand the point about the military victims of the crimes but since he wasn’t a direct participant in the attack and wasn’t a battlefield capture, what they are looking at is in the nature of conspiracy and Stevens spelled out why that is an unacceptable charge for a commission. Plus, we are saying to other countries that we can unilaterally and without following any recognizable standards can take both people we snatch in their countries and those they arrest and render to us and set up mickey mouse military commissions on far off islands or in the bowels of bagram and dispose of them at whim. Someone is going to have to explain to me how that makes us more safe – to establish that as our legal and international policy precedent.

        Oh well, real work calls.

    • emptywheel says:

      With Nashiri, they reiterated the story that type of victim and location of alleged crime were important factors in choosing MC. Though as you probably asw from the past thread, his lawyers have promised to challenge the venue.

  2. lawordisorder says:

    Not to be the party puppers here and for real(saluting the real hero off the battle of justice looking at marcy…you decerve it…you keept your head strait when others lost it) from the guys at sharp end of the stick here goes……..

    In the words of a real wartime leader: Never in the field of human conflict was so much owed by so many to so few.

    (as you all heard this before we here at the coffee maker is having the debate should it be the next one)

    Never, never, never believe any war will be smooth and easy, or that anyone who embarks on the strange voyage can measure the tides and hurricanes he will encounter. The statesman who yields to war fever must realize that once the signal is given, he is no longer the master of policy but the slave of unforeseeable and uncontrollable events.

    ohhhh yahhh marcy you and the guys are the real heroes of that battle here at the coffee-maker thats unanimous…the rest of us don’t pretend to have the brain nore the guts…so we get just shot at instead…lol lot more safe than being at the receiving end of marcy…….

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