New York Times
March 22, 2002


Pentagon Says Acquittals May Not Free Detainees


By KATHARINE Q. SEELYE

WASHINGTON -- Pentagon officials raised the possibility today of indefinite detention of prisoners from the Afghan war, saying that captives might not be released from United States custody even if they were acquitted in a military tribunal.

In addition, they said, prisoners may be held for the duration of the war, and no end is in sight.

Secretary of Defense Donald H. Rumsfeld has said previously that the 500 prisoners in custody — 300 in Guantánamo Bay, Cuba, and nearly 200 in Afghanistan — could be held indefinitely, but this possibility was given a new twist today as Mr. Rumsfeld and top aides announced the rules by which military tribunals would be conducted.

"If we had a trial right this minute, it is conceivable that somebody could be tried and acquitted of that charge but may not necessarily automatically be released," said William J. Haynes II, the Pentagon's top lawyer, calling the prisoners "dangerous people."

The tribunals, which would be mostly open to reporters, would require a unanimous vote for the death penalty to be imposed, rather than the two-thirds vote that President Bush had required in his original order of Nov. 13 establishing the tribunals. They also loosen the rules of evidence, allowing hearsay to be introduced, and do not provide an independent appeals process.

Mr. Rumsfeld said, "If one steps back from examining the procedures provision by provision and instead drops a plumb line down through the center of them all, we believe that most people will find that, taken together, they are fair and balanced and that justice will be served in their application."

But human rights groups were in an uproar over the rules, objecting most strenuously to the lack of an independent appeals process.

Jamie Fellner, a spokeswoman for Human Rights Watch, said, "Not to have an independent court of appeals and then to have the president have the final say potentially undercuts whatever fairness they've sought to provide at the trial level."

But the rules drew little criticism from Congress. Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, said that he had commended Mr. Rumsfeld today "for listening to advice" and for "taking steps that have substantially improved this proposal."

Senator Arlen Specter, Republican of Pennsylvania, said the rules were "on the right track" but he still wanted them to be approved by Congress. He has introduced legislation offering slightly different rules, and wants hearings on the matter.

At the briefing, Mr. Rumsfeld gave no information on who might face a tribunal or where or when.

Mr. Haynes said that it was too early to tell who might face the tribunals because it was difficult to gather evidence from the battlefield and from the prisoners.

"They're singularly uncooperative," Mr. Haynes said.

Other senior administration officials said that perhaps a dozen or two dozen of the 500 prisoners in United States custody would be likely candidates.

"The purpose is to try people who have committed the most significant violations of the laws of war, and there may be other ways to address other people, including transferring them to other countries," one official said.

He said that the administration expected the trials would not begin for several months because of the laborious process of building a case. "Each of these trials will be very difficult to do," the official said.

During the briefing, Mr. Haynes and Douglas Feith, under secretary for policy, said it was possible that someone could be acquitted in a tribunal but still not set free. Mr. Feith said that as in civilian courts, a prisoner might be acquitted on one charge "but there still may be other reasons to hold the person."

Mr. Haynes also defended the idea. "When somebody's trying to kill you or your people, and you capture them, you can hold them," he said.

"We are within our rights," Mr. Haynes added, "and I don't think anyone disputes it, that we may hold enemy combatants for the duration of the conflict. And the conflict is still going and we don't see an end in sight right now."

But, he added, "if we find that we're holding somebody who is not of intelligence interest to us, is not of law enforcement interest to us, is not a threat, in our view, to Americans, to the United States, to our interests, to our allies or friends as a terrorist — if we don't have any interest in holding the person, we'll let them go."

Don Rehkopf, a lawyer in Rochester, N.Y., who is co-chairman of the military law committee of the National Association of Criminal Defense Lawyers, said the idea of holding someone who was acquitted showed that the tribunal process was set up for a predetermined outcome.

"They create a tribunal that they say is fair, but then they can say, `We don't like the results and the hell with it, we're going to hold you anyway.' This is a follow-on to their policy of holding people indefinitely before you charge them." Mr. Rehkopf said that the rules of the tribunals were so stacked against the defendants, "if I came out of the woods after 20 years and saw these rules, I'd think Adolf Hitler or Joseph Stalin wrote them."

Copyright © 2002, New York Times Company. All rights reserved.

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