March 20, 2002
U.S. Adds Legal Rights in Tribunals
By John Mintz
WASHINGTON -- The Bush administration has settled on a complex set of military tribunal regulations more advantageous to al Qaeda and Taliban defendants than the guidelines President Bush originally issued in November, knowledgeable sources said yesterday.
The new rules would require a unanimous vote of judges to impose the death penalty on convicted terrorists – not the two-thirds vote Bush had suggested in his Nov. 13 executive order establishing the tribunals. And while the president's original order barred appeals after conviction, the new regulations allow military officers to review a tribunal's decision on appeal.
Yet the new rules, scheduled to be announced today, also give prosecutors more leeway than they would have in criminal courts. Hearsay or secondhand evidence could be used in the new tribunals, for example, although it is barred in ordinary criminal trials and courts-martial.
Bush's original order brought a barrage of criticism from human rights groups and European officials who said it could violate the rights of suspects brought to trial by the United States. In the four months since, experts from the White House, the Defense Department and the Justice Department have been slowly working out the details of what could become one of the most controversial aspects of the U.S. war on terrorism.
Despite the furor, many U.S. officials have concluded that there may be little use for the tribunals because the great majority of the 300 prisoners being held at the U.S. naval base at Guantanamo Bay, Cuba, are low-ranking foot soldiers, sources said. The tribunals are planned only for relatively high-ranking al Qaeda and Taliban operatives against whom there is persuasive evidence of terrorism or war crimes.
"The world now will begin to see what we meant by a fair system that will enable us to bring people to justice [but] at the same time protect citizenry," Bush told reporters yesterday.
Administration officials have other plans for many of the relatively junior captives now at Guantanamo Bay: indefinite detention without trial. U.S. officials would take this action with prisoners they fear could pose a danger of terrorism even if they have little evidence of past crimes.
Human rights groups expressed differing opinions about the new tribunal rules. All contended that some provisions still violate the rights of prisoners, but some expressed relief that the regulations had been softened since Bush announced them.
The tribunals, sometimes called "commissions," will resemble military courts-martial in composition. They will have three to seven members.
In cases where the death penalty is not a possibility, defendants can be convicted by a two-thirds vote. Those convicted in tribunals will be allowed to ask a review panel appointed by the president – consisting of three people, one of whom will be a military judge – to reconsider their cases. Defendants will not be allowed to appeal to the federal courts.
The rules of evidence governing cases before the tribunals will be considerably looser than they are in U.S. criminal courts. In ordinary criminal cases, a witness cannot offer hearsay evidence – information based on what someone else has said. But hearsay testimony will be allowed before military tribunals, sources said, because the government must show only that the evidence has "probative value to a reasonable person."
In criminal trials, prosecutors must establish a "chain of custody" for evidence, such as documents or fingerprints, to prove that police handled it properly after obtaining it.
But in terrorism cases brought before tribunals, which may involve papers or computer disks retrieved by U.S. soldiers from rubble-strewn al Qaeda hideouts in Afghanistan, prosecutors need not establish chain of custody. "It's not like we have a crime scene where a bloody glove got left behind," said one source knowledgable about the government's deliberations.
The trials will be open to the public, and the defendants will be able to hear the evidence against them. But the hearings can be closed – even to the defendants – if classified information is used or the discussion could endanger national security. In such cases, defense lawyers with security clearances could still be present, but would not be allowed to reveal the secrets to their clients.
Any alleged terrorists whom the president ultimately brings before the new tribunals likely would face charges of violating the laws of war, such as conducting hostilities while posing as a civilian, or committing crimes against civilians, sources said. Bush also likely would file conspiracy charges against such suspects, allowing prosecutors to use evidence involving one member of al Qaeda against others.
The human rights group Amnesty International said the new regulations violate suspects' rights in many ways. The worst provision, the group said, is that convictions could be appealed only to higher panels also named by the president, rather than independent judicial bodies – a practice it said was "deeply troubling."
Human Rights Watch expressed misgivings about the same provision. "In America, we've never let our political leaders decide who is guilty," said the group's Washington representative, Tom Malinowski. "That's been a fundamental principle since 1789."
Even so, he added that the milder rules "go a long way to meet the concerns of human rights groups. . . . It will help the Bush administration climb out of the deep hole it dug for itself . . . last fall."
Ruth Wedgwood, an international law expert at Yale University who supports Bush's plan, said administration officials have been judicious and concerned with the nation's security throughout the process.
"The time [government attorneys] have taken on this shows the seriousness with which they were taking on the criticism," she said. "This was clearly very carefully done."
In general, sources said, there will be four categories of prisoners: those deemed innocent and released; those repatriated to their countries for trial there; those tried before military tribunals; and those detained without charge. Human rights groups have expressed concerns about the last group.
U.S. officials will rely in part on decisions by European human rights courts that allowed British authorities to detain Irish Catholic and Protestant militants for long periods of time if they were deemed dangerous but not necessarily guilty of a crime, sources said. Those courts allowed the detentions as long as British officials periodically reviewed the cases.
International law allows for such indefinite detention only in cases of national emergency, and administration attorneys view the current situation – with a danger of clandestine terrorists possibly wielding weapons of mass destruction – as exactly that, legal sources said.
Another legal precedent for this type of detention without criminal charge is the practice of involuntary hospitalization of mentally ill people who pose a danger to themselves and others, legal sources said.
"In a state of real emergency, various liberties can be suspended," said one attorney who advised the administration on the rules.
Staff writer Juliet Eilperin contributed to this report.
Copyright © 2002, Washington Post Company. All rights reserved.
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