John B. Bellinger

“ Clearly, we think that the laws of war contemplate holding individuals who are juveniles. The first and second additional protocols to the Geneva Conventions to which the United States is not actually a party, but which we acknowledge portions, represent customary international law say two things on this subject.
One, they say that if a child is detained as part of an armed conflict, they should be separated from adults. So one, it's clear that the laws of war contemplate that juveniles may be detained. ”

“ Every individual in Guantanamo has the right to appeal their determination of being an enemy combatant into federal court, and that's what Mr. Khadr is doing right now.
As I understand it, the legal argument is, in addition to challenging the determination that he's an enemy combatant, they have asked for stay of the military commission proceedings on the theory that only individuals who are subject to -- who are enemy combatants are subject to military commissions. So, if he were not determined to be an enemy combatant, then he could not be tried by a military commission. ”

“ It does not define who is a child. We have -- and consistent with our international agreements -- treat individuals as children detained in armed conflict as individuals under 16. So for the few individuals who we took to Guantanamo who were subsequently determined -- and it was difficult to tell their ages, they didn't have their birth certificates with them -- were under 16. There were I think three individuals who were put in a completely separate camp -- Camp Iguana. Omar Khadr by the time he arrived in Guantanamo was over 16, so we did not treat him as a child. ”

“ There are youth in all of our countries, both in the United States and in Canada, who when they commit crimes need to be held accountable for those crimes. He killed an American soldier who now has a wife and children who are growing up without a father. He has maimed another soldier who's now nearly blinded. He engaged in acts of murder, attempted murder, conspiracy to commit acts of terrorism and should be held accountable for those crimes. ”

“ I know that Khadr's civilian lawyers and perhaps even his military lawyers have said that they would prefer that their client be represented by Canadian counsel. So it is an issue -- I mean, what's the issue? Is the issue of protecting the defendant against making a bad decision in terms of hiring someone from out of the country who doesn't know the system or is it the fact that he doesn't have the right to have a foreign attorney consultant, that it's too complicated to have a process -- you know, out of country lawyers. ”

“ In a normal war, where both sides have a right to engage in combat with one another, if a soldier kills a soldier on the other side, it's not murder unless it is done somehow contrary to the laws of war perfidiously, or killing someone when they are -- have already surrendered. ”

“ Khadr's Canadian consultants are simply incorrect. I checked with the Defense Department this morning and they tell me that it is simply inaccurate to say that Mr. Khadr's has not had regular exercise or has not seen the light of day. He has had regular exercise. He is regularly outside and has seen the light of day, so those allegations are just simply wrong. The conditions overall in Guantanamo, yes, we believe are consistent not only with international law but are very similar to and, in fact, are based on the rules and conditions in our maximum security prisons. ”

“ And then finally, the rules also allow individuals to hire foreign consultants. The reason those are not their principal lawyers is really to ensure that the system is fair. And that in most cases it's going to be difficult for a foreign lawyer, and perhaps Canada is something more of an exception, but for a foreign lawyer to be extensively knowledgeable in the U.S. military system, so one also has to ensure that the person has the appropriate security clearances. So if you think of all of the individuals in Guantanamo come from various countries around the world: Yemen, Syria, Libya. ”

“ Can these two processes go forward at the same time or at what point is -- does the military commission have to say the D.C. court has to make a decision before we can proceed any further?
MR. BELLINGER: They can go forward. The -- unless the federal court here were to stop the military commission proceedings. But the way the systems are set up, they can legally go forward. ”

“ Khadr's case and in the case of Mr. Hicks and others, as I think the world can see, have been extremely zealously representing their clients, calling into questions the bases of the act, making various charges. So they have been very aggressive in representing their clients.
In addition, should a individual for whatever reason not want to be limited only to his military counsel, he has the right to hire -- at his own expense, should there be any expense -- and a number of lawyers have offered their services pro bono -- civilian counsel. ”

“ Before we can simply allow them to hire foreign counsel to assist them, we have to go through a security clearance process to make sure that they really are who they say they are.
In this case, his Canadian consultants will essentially be able to do and provide as much advice and assistance as his assigned military counsel or his retained civilian counsel, but they are called consultants because they are not the lead attorneys of record.
MODERATOR: Very good. Do we have a question here in Washington? ”

“ He will appear at this point -- this is pretty much like a normal either federal court or military court arraignment. It's not the full military commission. Simply the presiding officer, the military judge will be there to read the charges against him, take his plea, confirm who his counsel are and then to set a motions schedule. ”

“ Certainly, we acknowledge that if someone is acquitted after trial, that that raises a certain expectation that someone might be released. On the other hand, these individuals are individuals who we believe are -- have engaged in acts of combatancy and that's why they're being held. ”

“ Every tribunal is different and I realize it's very difficult to make comparisons sort of across decades. But people accused in the international corridor, people accused at Nuremberg who were acquitted, were set free. ”

“ That said, we want to try as many of them who have actually committed crimes as we can. It's theoretically possible that if he were acquitted that he could continue to be held, but I think it is premature to speculate that that would happen. So I think people -- the accused have got to make up their own minds as to whether they want to engage in plea negotiations. ”

“ We would like to be able to try these individuals so that the world can see the crimes that they have committed and that there can be a judicial system that will judge them for the crimes that they have committed. It's up to them. In other words, it is not intended to try to elicit pleas from people, but of course as in any system, an individual in consultation with their lawyers are free to do that as did Mr. ”

“ So in answer to your question, under the military commission rules every accused before a military commission is assigned military counsel. In this case, Mr. Khadr has two military counsel assigned to him. The reason that's important is that it's critical to ensure that someone who knows the military system is assigned so that they can zealously represent the individual. The military lawyers both in Mr. ”