New York Times
December 29, 2001

Draft Rules for Tribunals Ease Worries, but Not All


WASHINGTON -- Critics of the Bush administration's proposed military tribunals were encouraged today by draft regulations for trying people accused of terrorism, but they remained wary over how appeals would be conducted, the lack of specific Congressional authorization for the tribunals and whether the tribunals were needed at all.

Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee and one of the chief critics of the tribunals, said the rules suggested that the administration was responding to concerns about due process.

"I find it pretty hopeful what they've done, at least initially," Mr. Leahy said, "and I'm certainly encouraged by it."

He referred to reports that the regulations would allow tribunals to be open to the public and the news media, would grant defendants the presumption of innocence and allow them to have military lawyers and their own civilian lawyers and would require a unanimous verdict for imposition of the death penalty.

Mr. Leahy said he still wanted his committee to have a say in the final rules and wanted Congress to pass legislation that would authorize the president to hold such tribunals.

"First, they should be used only if they are authorized, and I think that passage would be forthcoming if we can agree on the rules," Mr. Leahy said, "and second, I think they should be done only in very rare circumstances."

He added, "There will be countries where our military or diplomats may be seized, and we don't want to open up the doorway" for those countries to deny rights to Americans because America is denying rights to their citizens. "We have to show we'll adhere to a constitutional framework even when we're threatened."

The administration maintains that it has the authority to proceed without specific Congressional approval.

Officials from the Departments of Defense and Justice and the National Security Agency have been drafting the rules since President Bush issued a broad order on Nov. 13 calling for the tribunals. The order was immediately criticized by those who said it would curtail the civil rights of defendants and open the United States to accusations of conducting the same kind of tribunals it has protested those in which Americans were tried in secret in foreign countries, without lawyers or review.

Meanwhile, with the United States holding 70 captives in Afghanistan and expecting more, pressure is building for guidance from the administration on how they should be handled, what they should be charged with and where they should be sent. Administration officials disclosed the draft rules of the tribunals to news organizations on Thursday.

Mr. Bush said today that he was irked by the disclosures and that the rules were still being drafted.

"I know that the leaked report is preliminary, that they're still in discussions about how best to bring justice," Mr. Bush said at his ranch in Texas. "But one thing is for certain: that whatever the procedures are for the military tribunals, our system will be more fair than the system of bin Laden and the Taliban. That is for certain. The prisoners that we capture will be given a heck of a lot better chance in court than those citizens of ours who were in the World Trade Center or in the Pentagon were given by Mr. bin Laden."

There were reservations among academics over the failure of the draft rules to address the question of appeals and independent reviews.

Laurence H. Tribe, professor of constitutional law at Harvard, said, "All the rules about proof beyond reasonable doubt and other similar protections can look tremendous but not add up to anything if in the end there is no guarantee of an appeal outside the executive branch."

Reports of the draft rules said the verdicts and sentences by the tribunal, to be composed of at least five uniformed officers, would be reviewed by a three-member panel. It was not clear whether the panel members would be military or civilian or whether they would be judges. The panel would make recommendations to the secretary of defense, and the final verdict and sentence would be up to the president.

"The most important thing," Mr. Tribe said, "is that the appeal be to people who do not depend on the president's approval for their continuation in office, so they aren't alter egos of the president."

Those who already supported the administration saw the draft rules as a green light. Senator John W. Warner of Virginia, the ranking Republican on the Armed Services Committee, said he believed the administration was "on proper course and speed" and said he was eager for the trials to begin. Any kinks, he said, could be worked out later.

"We have to place our trust in the commander in chief and his subordinates to see that these trials are carried out in a proper manner," Mr. Warner said. "We want the world to perceive this as a fair and just procedure with proper safeguards, but at the same time, given the volume of cases, we've got to get going."

Scott L. Silliman, a military specialist at Duke University Law School, said that one way to improve the rules would be to include a review by actual judges.

"If the administration really wants to go the final step to full, fair and impartial justice, they need to build in some kind of judicial appellate review, like in the Uniform Code of Military Justice," Professor Silliman said.

Civil rights groups were skeptical on the same point. Jamie Fellner, director of the United States program for Human Rights Watch, said her group was pleased with the reports of guarantees of due process but added that the matter of appeals "goes to the heart of the process."

"You can't have justice without an independent and impartial proceeding, and they have not addressed that," Ms. Fellner said. "You still have a system in which the president determines who should be tried, who the commissions will consist of, and the president will determine what punishment will be levied on the accused. He's the prosecutor and the ultimate judge."

Harold Koh, a Yale law professor and specialist in human rights, questioned the need for tribunals, citing several contentious areas not addressed by the draft regulations.

"What are the prosecutorial guidelines to determine whether someone will be charged under this system?" Professor Koh asked.

"The more you use ad hoc procedures," he said, "the more it looks like you're structuring the procedure to bring about a certain result."

Most important, he said, the draft rules have not made clear for whom the tribunals are intended, raising doubts about whether they are appropriate for anyone.

Mr. Bush said today that he had not decided who might be tried in such tribunals.

"There's a lot of people to be questioned, and there's also a lot of decisions to be made as to how to run these folks through our system," he said of the mounting number of detainees. "And we're just not quite there yet. We've got time."

Copyright 2001, New York Times Company. All rights reserved.

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