Military Tribunals 'Just An Option'
The military tribunals set up for terror cases will offer defendants many of the same rights as regular trials, a U.S. official says. Defense Secretary Donald Rumsfeld is expected to issue regulations – four months in the making - for the military tribunals on Thursday.
Government sources familiar with the regulations said Wednesday the military tribunals would be similar to courts-martial, except that prosecutors will have more leeway in presenting evidence. Any appeal would also be limited to a special review, and a death penalty sentence would require a unanimous decision, said the sources, who spoke on condition of anonymity. There are currently no named defendants.
Under the regulations, defendants would be assigned a military lawyer and could also retain a civilian attorney, sources said. The tribunals would be closed only if prosecutors wanted to present classified material. Also, sources said military officers on the panels would have to reach a unanimous agreement to impose a death sentence.
"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," President Bush said.
Rumsfeld has said the panels, ordered by Bush in the aftermath of the Sept. 11 attacks, would be used in rare cases, if at all, and only if the suspects' home countries do not take over prosecution.
"The tribunals are just an option for us, and we'll be using the tribunals if, in the course of bringing somebody to justice, it would jeopardize or compromise national security interests," Bush told reporters during a visit to a Virginia elementary school.
In many respects, the panels would resemble criminal trials in civilian court and the parallel military system of courts-martial.
The defendants, generally suspected members of the al Qaeda terror network, would have rights to lawyers and to see the evidence against them. Military lawyers would be provided free, and defendants could hire outside civilian counsel if they chose. Defendants would be presumed innocent.
The panels would include three to seven officers, as do many courts-martial.
Proceedings would be largely open to reporters, although without television cameras. If prosecutors wanted to present classified material, the courtroom would be closed.
There are also key differences from other American judicial exercises.
Prosecutors could use evidence that has "probative value to a reasonable person," which is a looser standard than required by either civilian courts or military courts-martial. That gives prosecutors a freer hand in introducing evidence.
Hearsay evidence would be allowed, as would documents or materials without the neat chain of custody required by traditional courts.
"That is a very subjective standard" that could mean evidence allowed at one tribunal would be barred from another, said Frank Spinner, a civilian lawyer who specializes in representing military defendants before courts-martial.
To keep tribunal cases out of federal courts, defendants will have a very limited right of appeal to a special, three-member review panel. One member would be a military judge, and other members could be outside lawyers or experts deputized by the president.
The administration hopes the inclusion of outsiders will help quell criticism that the panels would be rubber stamps for any tribunal decision. The president would have the final say on what happened to a convict.
The defendant could appeal neither to a lower federal court nor directly to the Supreme Court.
That structure is unfair, said Timothy Edgar, an American Civil Liberties Union senior lawyer.
"If, in fact, they will allow no appeal to a civilian body independent of the executive branch — putting the lives of defendants solely in the hands of the president — then they will not respect basic American, and international, ideals of fairness and justice," Edgar said.
Conviction of any crime would require a two-thirds majority, unlike most civilian trials' required unanimity. Punishment short of death also would be determined by a two-thirds vote, but a death sentence would require a unanimous vote of a seven-member panel.
It was unclear whether the rules might be adjusted once Congress and other outsiders have reviewed them. Members of Congress were being briefed Wednesday.
"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 the war against terror makes some secrecy essential, he said.