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3/20/2002 (23:46) |
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Tribunals to Be Like Courts-Martial
By ANNE GEARAN
.c The Associated Press
WASHINGTON (AP) - Terror suspects tried before military tribunals would have many of the legal rights given defendants accused of other crimes, but prosecutors could use evidence that probably would be tossed out of an ordinary American court, a U.S. official said Wednesday.
Defense Secretary Donald H. Rumsfeld was expected to announce details Thursday about how the tribunals would operate. He has said the panels would be used in rare cases, if at all, and only if the suspects' home countries don't take over prosecution.
The Pentagon's rules seem designed to answer some of the sharpest criticism that followed President Bush's November announcement that tribunals would be an option for suspected members or supporters of the al-Qaida terror network.
A government official described the rules on condition of anonymity.
Bush said Wednesday, ``The world now will begin to see what we meant by a fair system that will enable us to bring people to justice (and) at the same time protect (our) citizenry,'' Bush said.
Asked if tribunals were imminent, Bush said, ``No plans right now ... nobody in mind as yet.''
In many respects, the panels would resemble criminal trials in civilian court and the parallel military system of courts-martial.
Defendants would have the right to a lawyer, for example, and the right to see the evidence against them. Military lawyers would be provided free, and defendants could hire an outside civilian lawyer if they chose. Defendants would be presumed innocent.
The panels would include three to seven officers, as do many courts-martial.
Key differences would be a freer hand for prosecutors in introducing evidence before tribunals, and a very limited right to appeal that is designed to keep defendants out of federal courts.
``I think this is falling far short of what was hoped for,'' said Frank Spinner, a civilian lawyer who specializes in representing military defendants before courts-martial.
The tribunals might allow prosecutors to use hearsay or evidence that came to them through unorthodox means - for example, maps and writings discovered in Afghanistan that could have passed through several hands before U.S. investigators obtained them.
Proceedings would be largely open to reporters, although television cameras would be barred. If prosecutors wanted to present classified material, the courtroom would close.
Members of Congress were being briefed on the plan Wednesday. Several endorsed it while criticizing a lack of congressional input.
``Under ordinary circumstances, we need to have as many protections as we could possibly have,'' said Sen. Ben Nelson, D-Neb., an Armed Services Committee member. But, he said, the war against terrorism makes some secrecy essential, such as closing the courtroom for classified information.
Michigan Rep. John Conyers, the House Judiciary Committee's senior Democrat, on Wednesday introduced a bill to limit the use of tribunals and to ensure decent confinement, fair trials and rights of appeal for the detainees. He criticized the Pentagon for not consulting Congress beforehand.
It was not clear whether the rules might be adjusted once Congress and other outsiders review it.
Spinner said the rules could lead to uneven justice - with one panel allowing consideration of evidence that another might reject.
Amnesty International, which opposes use of military tribunals, went further.
``The proposed commissions would be inherently discriminatory by affording foreign nationals a lower standard of justice than U.S. nationals,'' the group said.
Critics also found fault with the appeal system fashioned by Pentagon lawyers.
A convicted defendant could ask a special, three-member review panel to look at the case. One of the members would be a military judge, and the panels could include outside lawyers or experts deputized by the president.
The administration hopes the inclusion of outsiders would help quell criticism that the panels would be mere rubber stamps for any tribunal decision. The president would have the final say on what happened to a convict.
The defendant could not appeal to a federal court or directly to the Supreme Court.
Conviction of any crime would require only a two-thirds majority of the tribunal, unlike civilian trials. Punishment short of death would also be determined by a two-thirds vote.
Death sentences could be imposed only by a unanimous panel of seven members.
Rumsfeld announced completion of the rules last week. He said he had made no recommendation to the White House on which, if any, prisoners should be tried, and no final decision had been made on where tribunals might be held. Some 300 suspected al-Qaida and Taliban prisoners are being held on a U.S. Navy base in Guantanamo Bay, Cuba, and 244 more are in U.S. custody in Afghanistan.
Eugene Fidell, president of the independent National Institute of Military Justice, said he hopes the administration will be open to suggestions as planning for the tribunals continues.
``The uniformed service is going to have to do some training,'' before any tribunal convenes, Fidell said. ``There's no one in active military practice who's had any experience with this type of forum.''
AP-NY-03-20-02 2215EST
Copyright 2002 The Associated Press.
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