has been since 2009 to kill not capture, particularly through drone strikes and i just wonder what's your response to that criticism? >> well, i'm going to -- thanks, david. i think you raised an important point. i would push back on your statement of what our policy is. our policy is to defend the united states and we're going use all instruments of national power and authority to do that. the supreme court calls in a number of cases incidents of war. when you have an authorization to use military force as we do, you can use different tools. historical tools and i'll talk about it in terms of the supreme court, but this makes sense from probably a student in military theory too, you can target your enemy, those who are military objectives, your enemy. you can target them. you can surveil them, listen in on what they are doing.

you can detain them. very important incident of war. supreme court agreed with this in the rumsfeld case. in 2004 they said even though you don't see the word detain in the towardsation for use of military force, detention is an important incident of war. also an incident of war is to hold somebody accountable by trial under the law of war. long standing incident of war. and to agree with you, with the thrust of your statement, oil say and thank you for asking that question because you're helping me put a finer point anthony is if you take away one of these incidents of war, one of these methods of trying to s subdue an enemy and in our case in modern conflicts you can only being righteously at war if you do it under the rubric of self-defense. we're defending ourselves

against a threat. if you take away one of these ways of prosecuting that conflict to bring to it a swift an end as possible you create distortions in the system. so if you deprive a soldier of the option of detention, think about this. this is a good visual, right. you have a soldier, a marine in heldman, afghanistan he doesn't have a system of humane detention where he can pass the individual off and know the individual will be treated humanely under the law of war, if you don't have that option but you do have the option of still attacking and killing, we're putting young soldiers in a very difficult position. as my previous boss would say, we're urging, we're encouraging people not to live our values in that situation. so i happen to be, i'll talk, because i'm not here to talk

about other policies of the government, but i'm talk about military commissions, i am high on trials. i believe trials are an important way to vindicate our values. they also give you a form of detention that is the most defensible and lawfully sustainable that we know, although you can detain under the law of earned conflict, the most sustainable legal form of detention is incarceration after you've convicted somebody of a crime. this is recognized every where. that if you convict somebody, appropriately, properly of a crime and marshalled the evidence, proved it, then they have a sentence and are punished, that is a form of detention that is going to stand the test of time. the supreme court also said the

rumsfeld case the authority told them will unravel. that makes sense. your justification has gone way told them. it won't happen if you convict them under a crime. so i believe that trials are important, partly because they ensure that balance between the different tools and the incidents of war that we have to be relentlessly emperrical and pragmatic about using. we ought to be using all the tools available to us in trials by under law are one of the most important ways of doing that. and, you know, we're dealing with an enemy that is fighting in ungoverned terrain, hence making a strike by drone into an area where the local government may be unwilling or unable to do so. we are dealing with a so-called

asymmetric threat and i would propose to you that holding somebody accountable under law is maybe the most effective asymmetric counter thrust. i mean you're using -- all effective methods in war are asymmetric. i mean, the most basic flanking movement in a tactical engagement is happening asymmetrically in a way that the other side doesn't see. all effective techniques are asymmetric even if you're surrounding with a bunch of different ways, you're overmatching an enemy. the law overmatches those who are flouting the law because it can provide a legitimacy that the enemy just can't match and this is why we can't ever depart our values. these are not luxuries. rule of law is not a luxury.

we got to use it. it's the ultimate asymmetric weapon. anyway, great question. let me go here. >> i was wonder if you could talk a little bit more about the defense teams for the detainee, specifically i know a lot of them have civilian lawyers as well who are trying to do litigation in the civilian courts here. so i was wondering in the trials in guantanamo bay, are both the civilian lawyers and military counsel that they are given are they both, are they interacting together, is there one in charge or how does that -- >> let me address that. that's a great question. since the case of 2008 that went to the supreme court detainees have had of habeas

corpus. they've had the right to challenge it. it's in our constitution. one provision of our constitution that courts clearly held that does apply in guantanamo. so many of the detainees have civilian lawyers assisting them in habeas petition. this isn't a criminal proegd, this is actually a civil proceeding conducted under the rules of civil procedure in our civilian courts and centralized in the federal d.c. district court here in washington, and they are determining whether or not there is authority to hold a detainee. so i've been talking about criminal law. criminal trials, right. these are civil proceedings where a civilian lawyer is, is on behalf of the detainee filing a writ, you know, petitioning for a writ of habeas corpus from the court and the court is

supposed to determine hey government what's your authority for holding this person. and the standard is a standard that has been in place since march of 2009 which restates this law of armed conflict principle which means you can hold somebody if they are belligerent and is this person a part of or substantially support al qaeda or associated forces engaged in armed conflict against the united states or a coalition partner including those who committed a belligerent act. that's the standard. and they have civilian counsel to do that that are often pro bono or often doing it out of their interest in civil liberties. okay. now on the criminal defense side, i had mentioned before right to counsel and that is a detailed military counsel.

that's judge advocate trained in the law, practicing or has certified and qualified by one of the judge advocate general but somebody who has a law degree and has been admitted to practice in the bar in one of the states. that person has been trained to be defense counsel. that's the counsel they are entitled to as of right. they can also go get another counsel, a civilian counsel who may do it by pro bono or if the individual can fund it. and then if they are facing a death penalty case they get a capital counsel, capital qualified so-called learned counsel. and, you know, different accused have had teams of lawyers. it hasn't just been one. and the detailed military counsel or two, some defendants get three or more military counsel, could be a very complex case, a lot of discovery

material, a lot of charges. the chief defense counsel who is a marine corps counsel again senior judge advocate, supervisory judge advocate for many years is picking that team. he'll be the lead military counsel. often in cases where you got a seasoned and experienced civilian counsel internally that team may make the civilian be the lead for a number of pieces, have the civilian be the one leading different pieces. but that's up to that team on how best to represent the client and of course it's up to the client. the client can designate who he wants to represent. so that's kind of how it works. and they are entitled to investigative resources and other things to help them mount a defense. these things get litigated. i'll be the last to say that a defense counsel who would be standing up here and talking to you he or she is happy with the

level and that's healthy. that you'll see that in every system. but i believe if you look at the resourcing and you look at the litigation where the judge has decided some of the requests for translators and other things you would see there's a robust resourcing of the defense function. by the way, all those choices, are reviewable by the supreme court. ultimately reviewable by the federal courts. so they are preserved on appeal if someone thinks they are not being fully represented by counsel, not effectively represented, that's subject to review. great questions. okay. >> recently in pakistan the l.e. t. commander filed in court for

protection of the u.s. government. do you think that could be emul future commanders? >> know the filing of court? >> this particular commander filed in pakistan in court a petition from text, had the pakistani government protect him from attacks like german attacks and stuff like that. i kind of thought that puts the u.s. government in a pickle because we're going to have to take some risks in a political sphere or take some risks in a military sphere by letting this guy go. >> certainly that could be a strategy of a, you know, alaki's father filed a petition. it presents difficulties.

it's another aspect of litigation whether it comes in federal court, prosecution in federal court or military commissions you're dealing with evidence and events happening overseas. so it implicates our foreign relations in a very deep way and you, a veteran of policy in the department of defense know this well, we were working together last year on rule laugh in afghanistan and overseas is it implicates delicate and difficult concerns in foreign countries that analagous to a civil trial here. if it's an increase strategy of individuals harbored in different areas that it will present a challenge but not in a totally different way than what eve encountered because that's the nature of this conflict and nature of this kind of

prosecution. any others? sir. >> just had a question. there's a debate between whether to utilize the military tribunal or civilian court who is the decision maker? >> very good question. there's a 2009 protocol between the department of defense and department of justice. and the ultimate decision maker is the attorney general. so all the cases i've received i've received through a decision of the attorney general of the united states. there's a process laid out in this protocol on how that's done. it looks very much like in terms of the rules that are used, the decisions that are made daily between two different jurisdictions that may have concurrent authority to try somebody in our courts, right, in fact very familiar with this as a judge advocate trying cases in fort campbell and fort bragg

where we had a case that could have also been tried by the civilian courts and we had to decide who was going to get that. we had a memoranda of understanding still do with the department of justice on who is going to try these cases. there's a protocol that uses strength of interest factors, you know, who investigated the case, what are the charges that could be brought and what are the punishments for those charges. where did it take place? sometimes that's important to deciding which jurisdiction will do it. are there laws that bar you from doing it in one or the other. that's very important now for military commissions. so there's this protocol that decides which of two jurisdictions will get it. again, you may have a drug case that crossed state boundaries between oklahoma and kansas and

you'll have two u.s. attorneys deciding who will do it. they use much the same kind of analysis. it's importantly case specific. it's very fact oriented. and the intent is to do justice and hold accountableability under law but that's a great question. ma'am, i'm sorry to keep you waiting. >> speaking about criticism, there are motions challenging the secrecy and especially on the 802 conferences and also challenges about the classification of the accused declarations. so is there any hope that something changed by that, any

hope that the lawyers obtain that? >> well, i think you may be talking about specific motion which i won't address. i won't address any specific case. but i can talk about rules that i think bear upon this, okay. this will all be teed up from a methodical resolution through a process preserved on the record. can be appealed to an ultimately, federal civilian court, appellate court and supreme court. so that's the context within which these disputes and concerns about transparency and any other issue challenged to the commission will be resolved. but let's talk a bit. this goes to this, what i call unknown, these are unknown commissions and they are not transparent. we are using the same information practices and protection practices we use in our federal courts, okay. so i'm not going to promise that everything will be publicly

available. there really are sources and methods and items that have to be protected. by the way it's not just national stewart information. the government has a lot of information about individual citizens that we are not at liberty to just open our books to the media or to a party in a criminal proceeding. we have to have, i call it enumerated authority to do anything with information in the government. that's what people expect, you know. someone may have a sensitive medical file or information. we don't just open that up shint. it's just not information security information. we protect information as a government and we do it carefully. transparency as a general rule, yes. the supreme court said in the richmond newspapers case an open society does not demand

infallibility of their institutions. we do have a desire to actually see the decisions our government is making. so very important approach to openness and transparency. the main, if we're going to not have something be visible, and you're speaking of an example of a, say a pretrial conference between the two parties and a judge which by the way we do this under rule 17 and the fred rules of civil procedure, civil courts do this as well where you set up the trial and administratively go through areas. you're not making any decision on matters of law, you're not litigating anything. that ought to be done on the record. but in any decisions even about administrative matters need to be recorded then on the record, summarized on the record by the judge when they get back in. so, there is some level of something that the public is not seeing but both parties are there to object to it, anything

that is actual litigation on an issue has to be on the record. so, you know, we'll certainly see how those types of challenges come up in the future and they are resolved by a judge but i'm i see the tension with true transparency and understanding how the government's making a decision. anything in important has to be on the record, but we do all kinds ofstrative things. and they're not being done exparte, right? which might raise a concern. they're being done with both parties there. they're able to watch each other. there's someone watching, and that's an important principle. if there's going to be nondisclosure, the commitments our government makes, and these are all enscreened in the procedures from mirth commissions are that there has to be an overriding interest and reason for not having it be visible. so the protection of sources and methods i would submit to you in

cases is a reason. the protection of matters that aren't material to the case overriding interest. it has to be done in a tailored way. it has to be surgical, as narrow as you can make it. you have to have looked for alternatives to the closure. sometimes you can protect the information in a tailored record and then you have to put it on the record and preserve it, right? set to any of the nondisclosures of information that a detainee may say, detainees have, access to classified information. before they can blurt it out, we have to know they want to raise it and then we're going to figure out how we can protect the information while also protecting his rights. you've got to lay that out in a way that can be reviewed. and even the case of the conferences, the pretrial

conferences again which a lot of courts do, all courts do, that is being preserved as an issue through the motions practice. they can raise the issue if they want, and ifill be litigated. so those are the commitments on the use of information that we have to reconcile this notion of a free press and people understanding how their governments are making decisions with these other important governmental interests. they're not always in sync together and together in interest. but great question. ma'am? i'll come back to you, ma'am, but let me go here and then we'll go to you, ma'am. >> general, good to see you, rosalynn jordan with al jazeera english. you talked about the idea that this is one of the tools when fighting an asymmetrical war. you've also been noted for your ability to try to break the backlog as it were of cases at

guantanamo. do you ever anticipate that there will come a time where their particular form of the military commission would no longer need to exist, and if not, why not? ? >> well, i will go -- thank you. i will go back to this idea that although most cases i would submit international terrorism cases should be tried in a federal civilian court, there is a category of case where this instrument which is now an act of congress is going to be the best available option. i don't seep any major ending of this asymmetric type of threat. i mean, i tend to think that's the way people are going to try to strike out against very capable armed forces of a state. i think you're going to have stateless but coordinated effort

. i don't have a crystal ball it seems to me we're going to have those kinds of threats. not existential in the sense our everyday existence is threatened but very serious in a way that sometimes existential threats -- because you get defined in how you respond and you get tempted. these kinds of actors who are flouting the rules encourage even peaceful peoples to respond outside of the law. so having lawful instruments and this is, an institution that for over 200 years has been at the intersection of law and war. having institutions like that, the motto of my office that our team came up with is justice at the breach. there's -- this is a notion in inherent tension is you're in an area of war or armed conflict, how do you apply law? i happen to think that applying

law in those areas is a valuable instrument of our national power and authority and that it can be useful in specific cases. don't want it to be unbounded, don't want to turn soldiers into our civilian court system, but if given that mission, that we ought to be able to do it. so it's an institution on the books. we are developing a specialized practice you know, where we're able to handle large axts classified information safely. we have the clearances, we have is the departmental facilities. the defense counsel have those. we have the ability both to do justice and to protect information. beat develop relationships with agencies and organizations all over the government, increasingly with international partners. that specialized practice is an -- as an institution is a valuable thing to keep going. not just by its own momentum, but you can see if there is a need for it to keep that going. and that even though the number of cases may be small, the --

the national interests vindicated could be hugely important, justifying the expense involved in that. so you know, congress has invested a lot of legislative effort in trying to pull this together in a way that's consistent with our values and that does justice. my sense is it will be here, and again, two different presidents, the attorney general last month at northwestern has said that this is a part, an important part of our national security and justice institutions. let me go over here. one more question, ma'am, you have the last question. >> rosemary reid are d.c. historical society. i was struck by listening. i know today's focus is detainees in international and serious crimes, but it seems to me your average soldier crime would be local. why aren't they judged by a jury of their peers? why is it always officers?

i was struck by that. >> well, this is the jury function, the fact finder that congress has decided upon in these courts. now, you are pointing out the military justice system since 1950 has included a third, if an enlisted man seeks a jury trial under the military justice system, he may etloekt have jurors up to a third of jurors. but this is the composition of the boards and the juries that congress has specified and that's what we're seeking to implement. i would submit to you that it is an impressively diverse group gender, racial diversity, all these different things that are

policed by our congress. does not include enlisted personnel because that's what congress put the officers in the jury pool. perhaps policy jones that might make sense. officers are going to be in the fours for a while. not going to necessarily be up there, their enlistment isn't necessarily going to be up. some of these cases may take a long time because they're very complex. so there are reasons why congress could reasonably decide we're going to having this jury pool be this 230,000 of person, set of officers. that's a very good question. i encourage people to do that kind of comparison. comparison is very helpful in this because the systems are not identical. the differences between the systems may in a particular case make it a better forum. but by looking at something you know and are familiar with and trying to analogize, often you can come to a sense of the system and then you've got to step back and look at the entire

system and say is it a fair process that is getting at the truth but in a way that lives up to our highest ideals. and my final point will be that doing so and trying to find out what happened in an event, even something that we think we know a lot about, looking at it from the point of view of accountability under law and theeing if specified charges can be proven to the highest standard known in our system and then recorded, recorded so that other people can look at it and s see was it fair, that is an important justification for this process. thank you. [ applause ] >>