Washington Post
December 28, 2001


Terrorism Tribunal Standards Weighed


By Charles Lane

International terrorism suspects brought before U.S. military commissions would be presumed innocent until proven guilty beyond a reasonable doubt, could be sentenced to death only by a unanimous vote of the commissions' members and would have the right to an appeal, according to draft procedures for the commissions.

The proposal, which is circulating among legal officials in the Bush administration, reflects the current thinking of Pentagon lawyers about how to prosecute captured suspects. They could include the growing number of alleged al Qaeda and Taliban members held by U.S. forces, including 37 at a Marine base in Afghanistan and eight aboard the USS Peleliu in the Arabian Sea.

Defense Secretary Donald H. Rumsfeld said yesterday that the Pentagon is planning to transfer such detainees to the U.S. naval base at Guantanamo Bay, Cuba. He said that the base would not be ready for a number of weeks, however, and that there are no plans yet to hold commission proceedings there.

The draft does not include definitive language on some major issues, including exactly how, and in what forum, appeals would be heard, an administration official said yesterday. Rumsfeld must approve any final proposal. The procedures are being developed by the Defense Department's general counsel in consultation with the White House, the State Department, the Justice Department and outside experts. A Pentagon spokeswoman declined to comment on the process.

Still, the draft major portions of which were read to The Post by an administration official provides the most detailed indication yet of the administration's plans for the commissions. It also appears to address questions about their fairness and openness that have been raised by human rights organizations and members of Congress since President Bush authorized the commissions in a Nov. 13 military order. One administration official described the draft language as "pretty close" to final.

"Assuming that the final regulations look like [the draft], it would go a considerable distance toward meeting the concerns that have been voiced," said Eugene R. Fidell, president of the National Institute of Military Justice, which has taken no position on the commissions. "That said, big legal issues remain, such as the precise parameters of the appeals process."

The U.S. government has not yet designated anyone to stand trial before a military commission, authorized under Bush's order for any non-U.S. citizen whom the president determines "there is reason to believe" belongs to Osama bin Laden's al Qaeda network or is otherwise involved in international terrorism aimed at the United States. John Walker, a U.S. citizen and Taliban fighter now being held aboard the USS Peleliu, would not be covered and could face a civilian trial.

Among the most sharply criticized aspects of Bush's Nov. 13 order were the provisions that permitted sentencing including the application of the death penalty by "only" a two-thirds vote of a commission and that denied a right to appeal in "any" court.

But in the draft procedures, those parts of Bush's order have apparently been interpreted as allowing room for a unanimous vote on capital punishment and for appeals to what an administration official called "an appeals body." One idea under discussion is to create a separate military review panel that would not technically be a court, a person familiar with the administration's deliberations said.

The draft says trials before the commissions will be presumed open to the public and the news media and can be closed only when a commission decides it must hear classified material.

Defendants would have a right to a military lawyer at government expense and may hire their own civilian lawyers if they choose though civilian lawyers would need special government clearances to handle classified evidence. Defendants may see the evidence against them, cross-examine prosecution witnesses and present witnesses of their own. They will also enjoy a right not to testify.

These rules would be broadly similar to those used in the U.S. military's own courts martial, though the commissions could still admit hearsay evidence, which is normally barred in both civilian trials and courts martial.

Public opinion polls have shown widespread support for the commissions, but the expansive wording of Bush's Nov. 13 order prompted concerns among civil libertarians and many legal experts that the president had assumed broad new prosecutorial authority without any specific authorization from Congress.

Administration officials have consistently defended the president's order, noting that he was empowered to prosecute an armed conflict by a joint congressional resolution, and that the ordinary methods of criminal prosecution could not be counted on to handle the extraordinary threat posed by the foreign-based terrorist network that destroyed the World Trade Center and badly damaged the Pentagon.

"Are we supposed to read [terror suspects] their Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of 'Osama TV,' provide a worldwide platform for propaganda?" Attorney General John D. Ashcroft said during a recent hearing before the Senate Judiciary Committee.

At the same time, members of the administration have sent signals seemingly aimed at soothing its critics. White House Counsel Alberto R. Gonzales told a gathering of the American Bar Association that "despite the broad language in the military order, which talks about cutting off other avenues of court proceedings for commission defendants, we fully contemplate that habeas [corpus] review will be available" for defendants arrested, detained or tried in the United States though not for those outside the country.

Rumsfeld called the heated debate over civil liberties "useful." He asked a group of veteran lawyers to advise him on how to construct the commissions. These advisers include former CIA and FBI director William H. Webster; Griffin B. Bell, President Jimmy Carter's attorney general; William T. Coleman, President Gerald R. Ford's transportation secretary; and Lloyd N. Cutler, President Bill Clinton's White House counsel.

An administration official said yesterday that the draft procedures do not represent a concession to the critics. "The president wanted them to be full and fair trials, and this does that," the official said.

But another person familiar with the legal consultations over the commissions said that "the debate in Congress and the press has been a very wholesome thing, and I hope and expect the procedures will be responsive to that."

Sources familiar with the draft procedures said they may reflect the input of the military's own lawyers, known as judge advocates general, who feel a strong personal stake in preserving the legitimacy of military justice.

"Uniformed lawyers are anxious to become involved, both as prosecutors and defense attorneys," Fidell said. "There will be no shortage of volunteers."

Staff writer Vernon Loeb contributed to this report.

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

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