"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."
