captioning performed by vitac then i've been a staff adjudicate and worked with a lot of military jurors. they are selected with an awareness of the importance of diversity in a jury panel.

you want to have, you know the classic american example of this is "12 angry men." looking at the facts in a lot of different ways. there's a lot of different thing. scholars say that's 12 angry white males that's not particularly diverse. nevertheless. diverse in their life experiences and you have different people coming at the same sorts of facts they heard about at trial and testing them from different angles. important part of our jurisprudence and system. that's the heart of the military justice system as well and the military commission system is this jury in this case of officers, like kalil here, two-time veteran. studied in cairo.

okay. so i've spent some time on it it's worth it. then there's a judge. a presiding judge over this. this is an experienced attorney, someone who has graduated from a law school and is practicing before the bar of, admitted before the bar of one of the states and he is typically an army colonel, or a navy captain, air force colonel, typically a senior officer who has significant experience and training in criminal law and they are judge advocates, legally trained officer, certified anticipate qualified. they are not, another important distinction, they are not article iii judges, so these are not lifetime tenured judges who have been chosen, nominated by the president and confirmed by the senate.

as are federal, appellate and supreme court judges are. but i would sub to when you they are independent, and if you look at their decisions and the things they have done to date i would defy you to say they are somehow carrying out the will of somebody else. they are doing the law. they are experienced in doing that. so those are the different players in the system. then what they do is try the charges, the referred charges. ensuring that all of those protection and procedures that i talked about that are protections of the accused happen. it looks like a trial you'll see a civilian world. if you've ever been on a jury or in a trial. prosecution will, both parties will make opening statements. tell the jury what the evidence will show. the prosecution presents its case in chief. providing evidence, direct testimony, bringing in different

types of evidence. forensic, physical evidence, demonstrative evidence it's called, charts and things to try to explain complex data. then those witnesses, expert testimony, if something is really technical and then all those witnesses, the accused counsel will cross-examine, have the opportunity to cross-examine. prosecution will rest. typically the defense will make a motion for a finding of not guilty right then, even before going their case. your honor, the prosecution hasn't proven guilt beyond a reasonable doubt. that's their burden. because that motion in that stage in american jurisprudence where you consider in the light most favorable to the resolution for that purpose, if there is enough on particular charges that that motion will be in that case denied as to particular charges where it's not true or where they have proven it. defense then presents its entire

case. brings forth all of its witnesses to show not guilt, that an individual is not guilty. the prosecution will cross-examine those witnesses. this is all happening in front of this jury, right? judge will then give instructions the jury on the law. on how they are to do their proceedings. both parties will give closing argument, explain why. this is the adversarial procedure. people who weren't watching it can say okay i know those procedures where you say i have

c confidence, i trust that. i should have mentioned too, by the way, the jury there's a peremptory challenge that you don't have to give your reason. military juries do use doctrines in civil jurisprudence with regard to peremptory challenge. if someone is challenging off a member for a reason, discriminatory reason, that's observed in military courts as well. peremptory challenges is part of this. the jury deliberates and then you wind up getting a verdict

and then sentencing happens if there is a finding of guilt on a count, and that is proceeded by, again, an adversarial process where both sides present witnesses as to afwra aviation -- aggravation and my day investigation where the jury does sentencing. before i go to questions let me trigger some questions by raising criticisms of the system and then giving you a sense of the counters that i believe are persuasive but starting the conversation. i call them the five uns. it summarizes the criticism of military commissions. that they are are unsettled. unfair. unnecessary. unknown.

and/or unbounded. let me go through those five uns because, i believe, that although some of them had aspects that were sound criticisms at various points in the prior versions, now they are either untrue or misleading, and that to continue to oppose the military commissions that i've summarized and described after two different administrations in the executive branch, the supreme court in the rumsfeld case which invalidated the 2001 version of commissions made very clear that congress had the ability to make commissions, and then no less than five acts of congress have established a

strong basis for these commissions to continue to oppose them when considering how justice delayed at some point really does become justice denied, to continue to oppose that framework of the rule of law at this point is my final un, unwise. let me go back to unsettled, unfair, unnecessary, unknown, unbounded. okay. the argument that military commissions are unsettled is that you have to make this stuff up as you go along, there's no settled procedure, it's all changing and so much litigation risk, people will challenge it forever and you'll never get to where you're going. and they will point to the fact that there have been seven convictions by military commissions and there have been over a couple of hundred

comparable international terrorism prosecutions by federal criminal court. it's unsettled. why use these commissions, unsettled. to that i will say that there is well established law, these commissions are providing and i would ask you to try to view these or look at the transcripts online. i'll talk a little bit more about the ability to do that. but they are a judge operating in the system has law, has sources of law. he's to look to courts martial with some minor differences. i spoke about -- i spoke about this hearsay thing, the hearsay being slightly narrower. there's no miranda rule, no requirement for warnings to be read, which is different. but with some very isolated differences, the uniform code of military justice and all of the judicial decisions in military courts are applicable. he looks there. the judge also, he or she will

look to federal law. there are specific lays. i mentioned classified procedures act is where we draw heavily from. but there are others. has the accused been given an opportunity to obtain witnesses. there's a place to go for law. this idea that there's no sources of law or that you have to make it up, i submit to you that's a court is about applying law to an individual case so there are issues that arise. they arise all the time in trials. that's what our system does. so judges are having to resolve cases, individual cases by applying law to individual facts of an alleged crime but that's no different than you have in any other system. and the system is built and set up to tee up, to rise these issues from a methodical and resolution way in a methodical

way. it's happening. it's happened. this idea that there's this notorious litigation risk is increasingly dissipating as we get judicial decisions. i won't say there aren't continuing issues. there are in every system. big issues that we have include the consensus of conspiracy and material support for terrorism. these are challenged fundamentally and substantially. it will be heard in the court of appeals. i would counter it is unsettled, a settled body of law that's being applied. that they are unfair. now this goes to one or more of those protections that i gave you that somehow they are not fair enough and i've listed all of them. i won't list them again. i'll say that this is a body of

procedure and law that will produce fair trials and that those latest reforms, the reform not to admit any statement obtained as a result of torture is an important one. these are fair trials, administered by independent people who are not waking up in the morning trying to convict somebody. i mean these are independent, all independent officers who have, although, again, not tenured positions for lifetime within our federal system are in, fair, sworn to uphold the constitution and are doing their duty. so, response to the unfair criticism. unnecessary. now, this is somewhat related to that unsettled one that i mentioned. we have a system. i am a big fan of federal civilian trials for international terrorism cases.

our u.s. attorneys offices in a number of districts have done a great job in doing this. and there are, i would say that most cases where you have an overlap in jurisdiction and let me pause to explain that a minute, because the key of this unnecessary argument. military commissions try violators, alleged violators of the war and they must have jurisdiction three different ways. there has to be a violation of the law of war. it has to be a crime against the laws of war. so a subject matter you can't try somebody in a military commission for violating a financial law. it has to be crime. some of these things are similar to what happened in peace time, murder but happening in the context of hostilities. some of them look very much like

crimes in a criminal code, but some of them don't, right? treachery, perferty, you're in the vehicle with a red cross on it, hiding behind the protection that the international community. red cross may get on a battlefield and you fire from that vehicle. that's an act of treachery. you're using the obedience of the law, that's a crime. so you have this body of 32 crimes. you have to have jurisdiction, you can only charge those. you have to do it over somebody who is the right kind of attorney charge and this is an unprivileged belligerent. somebody who is not complying with the laws of war. so you can't try an enemy prisoner of war, somebody who is

uniformed enemy in a military commission convened under the military commissions act. congress has said these are limited to unprivileged bel belligerent. i want has to be associated with hostilities. so this is a narrow jurisdiction i'm describing. hostilities are more than sporadic acts of violence. this is concerted. protracted armed violence of a scope and an intensity that justify the use of the armed forces to counter it. this is a narrow jurisdiction. now if you look hard at some of these things, murder and violence of law of war, conspiracy with towers commit murder in violence of the law of war, attacking civilian, hijacking of aircraft, these other things that happen in the context of hostilities. if you look at that and say hey that likes a civilian crime too,

we got hijacking statutes, we got terrorism statutes, you're right. there's an overlap in jurisdiction. that's the nature of the world we're in. it's the nature of the threats we're facing. is that they can be characterized both as a violation of civil laws and violation of laws of armed conflict. one. key indicators is that congress in 2001 passed an authorization for use of military force that made it clear that al qaeda and associated forces and those immediately harboring it are enemies. you got this overlap in jurisdiction. the unnecessary criticism is hey why don't you just trial those people by civilian court. and the response to this is that although i believe that is in our interest most of the time to do it, there's a narrow category of cases where the best choice

is a military commission and there's a variety of different arguments oi'll give you on tha basis but some boil down how should the crime characterized. what's the best way to try and punish that conduct, whether war conduct or civilian conduct. sometimes it's better to character characterize it as a violation of war. this is sort of an inverse version of the unsettled. they have not tried these kinds of cases. they have not traditionally been used. others might emphasize the difference in the jury. we want our civilian jurors to handle international terrorism cases. if the jury is one. ways our society gets skin in

the game, in a prosecution. it causes the people to have to consider a crime. so in new york, southern district of new york, manhattan, alexandria, jurors having to consider these threats and whether or not a crime has been committed is a healthy part of our process. however, in a particular case, intense analysis of where a case should go, sometimes a military commission is the better choice. to use that jury i described or to use it in an area that maybe isn't in a down area. again, i believe our cities can handle international terrorism cases, but there are situations in which you put these factors together. another happens to be whether or not miranda warnings were given and is that the right rule for the circumstance? miranda makes a lot of sense if you're ensuring against

self-incriminatory statements in the streets of chicago. given it in kandahar where we were this time last year makes no sense at all to have 18, 19-year-old troops giving miranda warnings. that can play into a question of whether or not you go with the military commission. so, i mentioned the hearsay rule before. so sometimes these differences in the proceedings will make military commissions the wiser choice. and that is the counter to the unnecessary argument because when you're faced with this kind of threat, not an threat compared to what we were facing in world war ii when 130,000 humans died in the battle of okinawa alone in the south pacific, different kind of order of magnitude kind of threat. when you're faced with a serious threat and a threat that defines us in how we respond to it, and

that is changing and that involves new technologies and new ways these groups are going to be coming at us and, in fact, groups that both flout the law and cynically invoke the law for refuge. when you're dealing with threats like that and they are out there why would any government take an institution or a tool off the table? this is the counter to the unnecessary argument. flip i want around, why would we take that off the table? this is a system that military commissions that has been around in some form or another since before the constitution, again both, two administrations now say it ought to be part of our national security apparatus. so that's the counter to, counter to the unnecessary argument. you may want to follow up on it. unknown. hey, okay. you're persuading me, mark martins that there is, these are, can be fair but i don't

know anything about them. i don't know them. i haven't seen any of them. i don't understand them. they are unknown. isn't that part of being perceived to be fair and being known to be fair and the history of an institution is an important thing to consider. i would agree with that. but i would say that we've made important strides in helping them be known. because these are taking place right now although they don't have to be but they are taking place in guantanamo, nothing in the military commissions act mentions guantanamo. they are not specific to any particular site. they can be convened somewhere else. they are happening in guantanamo in order for people to understand and can see the proceedings they are being transmitted by closed-circuit television to the continental united states for observation. the same rule applies in the military commission as it does in a court martial of a service member or in federal court. we have the same rule.

the public and the media can go in and watch the proceedings but they can't record them. can't take pictures. can you have a sketch artist sketch them but this is a rule we're familiar with in our criminal justice system. it's our way of balancing fair press, fair trial, free press and in some sense national security protection information is how we balance that in our criminal justice system. we don't televice our federal criminal trials or televice military commission proceedings but you can observe them. because it's hard to get to guantanamo, a compensating transparency measure has been to have proceedings transmitted closed-circuit to an extension of the courtroom stateside and that's been happening since last fall. there is also a website where you can see all of the pleading, all of the motions that have been filed, the court rulings, the reply briefs that counter

the motion that a party has made. and then there's a transcript of the proceedings, unofficial, unauthenticated transcript. but a quick transcript is produced put up on the web verbatim. you can follow if you didn't get a chance to see the proceeding, you can go on the web and see what happened word for word through the proceedings. those are important measures of transparency. then i spoke of unbounded. this is the criticism that, of being concerned about expanded military jurisdiction. the mission of our military is to fight our nation's war, defend our borders. not to police our streets. or hold the trials that enforce the laws.

and to embrace this military tribunal is to undercut that important value. that we need to have our civilian juries trying these cases so our society gets skin in the game. the jury is linking the government to the people. if you substitute in this military court that you're undercutting that. there's a long line of distinguished cases in our supreme court's opinions going back to the trial of an indiana man by a military court when the civil courts were open. a distinguished line of thinking and dissent against military jurisdiction. and the response to that is, first of all, we've not sought this out. there isn't somebody trying to expand military jurisdiction out there. i'm an officer who was in afghanistan thinking i was going to another operational assignment and because i have

legal training they said martins you're on order, go do your job. we don't lobby for missions. we didn't lobby for this one. but if we're given the mission we'll do it with integrity, we'll do it with skill, we'll do it as well as we can do it. we'll use from across the government every bit of expertise we can get. there are eight u.s. fabulous tremendous department of justice attorneys who work for me and the federal bureau of investigation has mobilized a system of investigation. we use the whole of government. we'll use this authority of military courts because fits certain types of cases. and our jurisdiction, the other part of the counter to this notion that it's this unbounded thing is that look at our jurisdiction. congress has very clearly sir co -- circumscribed to it an offense. did it take place in the context

and soeshd with ho and associated with hostilities. it's circumscribed to privilege. it doesn't apply to u.s. citizens. those all have to be in civilian court. and then it has to be one of those 32 offenses. so a circumscibed jurisdiction. for whatever reason can't be done in a civilian court. the major reason cases can't be done in civilian court is congress has blocked it. you know, you got two of those

five acts of congress that i mentioned were national defense authorization acts in which congress has said no detainee from guantanamo can be transported to the united states with any federal appropriation. so i would say in that context this is not an unbounded project at all. this is a project that is intended to implement the rule of law and that to not see that and to not support it, i'm actually asking those of you, i'm most unlikely possible spokesman for that, i'm a former infantryman lawyer on my last duty with the military. here i am trying to, try to explain to folks that we're going to do this fair. we're committed to doing it fair. it can be done. to not get behind i want now that there's been this

resounding all three branches of our government having weighed in, given the threat that we face is unwise. so, that's to stimulate some discussion. i think we still have a good full half hour for questions. so why don't we go ahead. [ applause ] . i'll start here and go clockwise. >> one of the big criticisms is that although it's wonderful that we're giving these protections to detainees, that this only applies to detainees who are allowed and you're asking the military to reach an impossible civilian standard of proving guilt and the ron