New York Times
December 28, 2001

Rules on Tribunal Require Unanimity on Death Penalty


WASHINGTON -- The military tribunals that may be used to try Al Qaeda members and others accused of terrorism will require a unanimous verdict to impose a death penalty, although a two-thirds vote of the panel of military officers will be enough to find someone guilty, according to rules drafted by senior Bush administration officials.

In addition, the draft regulations stipulate that a defendant is presumed innocent and that the military panel may find someone guilty only after deciding that the proof of guilt is beyond a reasonable doubt, the highest standard of proof and the one used in civilian criminal trials, said administration officials involved in producing the regulations.

But hearsay and other kinds of evidence that would typically be excluded in civilian trials would be allowed at the tribunals. The standard the regulations provide would allow the military judges to consider any evidence that "a reasonable person" would find useful. That means that evidence like the videotape of Osama bin Laden boasting of the Sept. 11 attacks and any intelligence interceptions would be admissible.

Since President Bush issued a military order on Nov. 13 establishing the tribunals, the administration has faced criticism that the proposal allows for wide-scale violation of civil liberties. In addition, there has been a rich debate as to whether any defendants in terrorism cases should be tried in civilian federal courts, in part to demonstrate the strength of the nation's justice system.

Administration officials said in response that they believed military tribunals were a necessity when dealing with people accused of terrorism and war crimes for reasons of security and to protect national secrets. But the draft regulations demonstrate that officials have also been sensitive to the criticisms and have incorporated provisions to deal with some of the complaints.

Pentagon officials said today that they were continuing to try to find a place outside the United States, probably on a military base, where they could conduct the tribunals.

Donald H. Rumsfeld, the secretary of defense, said today that the military was planning to hold many prisoners from Afghanistan at the United States naval base at Guantánamo Bay in Cuba. But Mr. Rumsfeld said there were no plans to hold the tribunals there. [Page B6.]

"We are making preparations to hold detainees there," Mr. Rumsfeld told reporters. "We have made no plans to hold any kind of tribunal there."

He said Guantánamo was "the least worst place we could have selected" as a detention area.

An official said one difficulty in finding an overseas base for the tribunals was that many military installations, especially those in Europe, were leased from countries that prohibit the death penalty. Holding the trials on ships remains an option, although another official said that was being thought of as a last resort.

The military has already detained dozens of prisoners from Afghanistan who could be subject to these tribunals, but no decisions have been made to bring charges against any individuals, officials said.

One official said the administration had not yet selected which people it intended to put before a military tribunal. But the official said the early estimates were that the tribunals could be used for several dozen prisoners. Although the tribunals are intended largely for Taliban and Al Qaeda members captured in Afghanistan, officials said they had not ruled out using them for people arrested in other countries, including the United States.

The draft regulations are the work of lawyers in the Defense Department who have consulted with officials at the National Security Council and the Justice Department, officials said today. They said Mr. Rumsfeld was expected to approve the regulations with little, if any, modification.

One major modification that has been incorporated into the draft, apparently in response to critics, is the provision for an appeals process. One administration official said that after the verdict and sentencing by the tribunal, which is to be composed of at least five uniformed officers, a separate three-member panel would review the decisions.

The appeal panel would accept arguments and pleas from the defense lawyers and would then make a recommendation to the secretary of defense. The final word on approving any sentence and verdict would be up to the president.

Under the draft regulations, defendants would have military defense lawyers appointed for them but would also be able to hire civilian lawyers.

"These procedures show that we will conduct the military commissions in a very full and fair way and that we're going to follow a high standard of justice," an administration official said tonight.

The regulations also provide that the proceedings be open to the public and the news media and may be closed only to prevent disclosure of national security information. It is unclear whether information that is to be withheld from the public could be available to the defendants and their lawyers.

That feature is similar to the Uniform Code of Military Justice, which governs the rules of courts-martial of American servicemen and allows some evidence to be kept from the defendants for security reasons even though it may be used by prosecutors. The administration, in response to critics, has asserted that the rules for military tribunals are similar to those in the Uniform Code.

But there are also several areas in which the military tribunal regulations and those for courts-martial differ.

In courts-martial, a three-fourths majority of the panel is needed to concur on any sentence more than 10 years, said Eugene R. Fidell, a Washington lawyer and authority on military law. The tribunal regulations would require at least a two-thirds vote of the panel to impose a sentence less than death.

Another crucial difference is that the rules for courts-martial are similar to those of civilian courts in requiring hearsay and other questionable evidence to be excluded. Moreover, the results of courts-martial are reviewable by a civilian court, the Court of Appeals for the Armed Forces, and, ultimately, by the Supreme Court.

Administration officials have designed the military tribunals to operate apart from the civilian court system. If the trials are held outside the United States, it is also unlikely that defendants would be able to use the writ of habeas corpus in their appeals. Habeas corpus is commonly used by defense lawyers to have federal courts intervene in death penalty cases and review them.

"With these regulations, some missing parts of the canvas are being painted in," Mr. Fidell said, "and obviously there seems to be movement in response to the kinds of concerns that have been expressed. But there are also many discrepancies between the regulations and the uniform code."

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

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