OFFICE OF THE SECRETARY OF DEFENSE
or MELITARY 

    

Converting Authority and Director

EXECUTIVE summanv DEC 8 9 2014

FOR: DEPUTY SECRETARY OF DEFENSE
FROM: Mr. Vaughn A. Any. Cenvening Authority and Director. Office of Military Commissions 
SUBJECT: Assessment of Of?ce ot'Military Commissions

In the ?rst sixty days following my appointment as Convening Authority. I conducted an
assessment of the current situation and future challenges facing the Of?ce of Military
Commissions Based on this assessment. I am convinced we must take action to realign
resources and better position the commissions to achieve the efficient. fair. and just
administration of ongoing and future military commissions.

II During FY14. the trial judiciary conducted hearings on 33 calendar days for a total of 10? hours
and 50 minutes on the record in all tour eases combined. in other words. during FY14, the
commissions as a whole averaged less than three days of hearings each month and an average of
less than three and a half hours on the record for the days on which hearings were held. One
case was resolved at a guilty plea in February 201d. but three contested cases (seven detainees)
remain on the docket: WI e. Khalid Shaikh Mohammad. et? all. charges referred 3  May
201 USS Cole U. S. v. [tori ul-Nashirl. charges referred 23 Sept 201 and US. 
AM at Hedi" {charges referred 2 June 2014)- An analysis ofthe FYIB hearing date
yields a similar pattem. in commissions held hearings in only tvro eases: Wit and USS
Cole. These hearings were hcid in nine sessions over the course of the year with a total of 34
separate days of hearings and an average of less than ?ve hours on the record each day.

I- The parties continue to create additional demand for more hearings by appropriately ?ling a
large number of motions to address the multitude of complex issues in these cases (cg. there
are 325 appellate exhibits to date in the 1 case alone). To properly litigate these issues. the
parties request oral argument routinely. Certain issues have generated multiple hearings with
several matters from the initial phases of litigation still pending resolution. Of the three
contested cases on the docket, two were referred for trial over three years ago, two still have
jurisdictional issues pending resolution, all three have pending motions regarding the form of
the charges. and the discovery phase of litigation in all three cases has yet to be resolved. Given
the complexity of the cases. the current pace of litigation, the issues to be decided. and the work
necessary to get these contested cases to trial. I believe we still ?nd ourselves in the beginning
stages of the trial process.

a In FY14. OMC spent approximately $78 million in support of the commissions (not including
military personnel costs for approximately l53 uniformed personnel].

Pirated en Recycled Paper

 believe action is required to change the status quo. The commissions are currently positioned
to accomplish exactly what they have done over the last several years: support guilty pleas and
conduct infrequent litigation on the record. Moving forward, the addition of each potential
variable could further impact the pace of litigation: the possibility of one or more of the accused
being severed front the joint 9! It prosecution; the referral of charges in another contested case;
or the initiation of an extended trial period. Fundamental changes are necessary if we are to
better position the commissions to meet the demands of complex contested litigation. Unless
and until we dedicate full-time judges on site, we cannot demonstrate a serious commitment to
the commissions process. I beiieve the time to act is now.

Recommendation: recommend that you implement two important revisions to the Regulation
for Trial by Military Commission: (I establish military commissions as the exclusivejudicial
duty [in the military judges and (2) designate the judge?s place of duty as the venue where the
military commission is to take place. See TAB A, recommended revisions to Regulation. [f you
approve my recommendations. I believe the pace of litigation will accelerate leading to a
corresponding increase in requirements in order to build capability and capacity to
support the commissions.

Supporting Action: On October 31. 20! 4y I requested the prosecution, defense and trial
judiciary revisit their personnel requirements. We are continuing a dialogue with the
prosecution and defense to assess their needs. As we work through the challenges and as their
missions evolve. we will continue to make sure they are adequately and equitably resourced.
The trial judiciary has demonstrated an immediate need for additional support. I have therefore
requested the General Counsel validate the hiring of live additional civilian attorney~advisors
for thejudiciary to assign as law clerks to each military commission case, as well as four
paralegals, three court security of?cers and an of?ce manager. in accordance with the
Regulation for Trial by Military Commission. chapter 2-3td).

Future Requirements: 1 am prepared to dedicate additional resources to expand on-sitc of?ces
for the prosecution. defense. trial judiciary. and the of?ce of the convening authority. In a
parallel effort, OMC is taking measures to improve the efficiency ot?our budgetary and resource
management processes. Finally. as the pace of litigation accelerates. I anticipate an emerging
requirement for further resources from outside agencies in order to the
declassi?cation process to meet the time constraints of trial.

COORDINATION: TAB 

Attachments:
As stated