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Military Commissions

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Updated January 25, 2004
By Paul Stone, American Forces Press Service

WASHINGTON -- 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."

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