Military Tribunals Under Fire

Friends and critics alike are pressing the Bush administration to change its new rules for trying suspects in the global war on terrorism — rules for the first military tribunals planned by the United States since World War II.

And it appears the Pentagon is prepared to bend a little.

On Tuesday, the Pentagon's top lawyer held a third round of negotiations through which Britain is seeking special treatment for its two citizens facing trial — talks that critics say smack of political favoritism.

The American Bar Association said Tuesday the administration should drop plans to let agents eavesdrop on conversations between terrorism suspects and defense lawyers and should ease other restrictions to ensure military tribunals are fair and open.

The ABA's policy-making House of Delegates took no position on whether individual lawyers should participate in tribunals, although another lawyers' organization has already said it would be unethical to represent terrorism suspects under the current rules.

Though some charge the administration is playing foreign policy favorites with close friends (ally Australia also is negotiating for its suspect), legal and human rights experts say the London talks could set a good precedent by forcing more changes in a newly created tribunal system that is seen internationally as secretive, unfair and full of rights abuses.

Diplomats from other countries whose nationals are being held as terrorism suspects say they are waiting to see how many changes and concessions Britain and Australia are able to negotiate.

So far, the Pentagon has said one Australian and two British suspects will not be subject to the death penalty and will be afforded several exceptions to tribunal rules.

Besides eliminating the question of the death penalty, negotiators have decided the Australian and two Britons will be allowed lawyers from their homelands as "consultants" despite a rule that lawyers before the tribunals must be U.S. citizens. The defendants' conversations with their defense teams won't be monitored, though Pentagon rules allow such monitoring for national security reasons.

It was agreed no tribunal proceedings on the three will go forward until the end of negotiations. Their countries also are seeking more access by the prisoners' families and the right of the defendants to serve any sentences in their own countries if they are convicted, among other assurances.

The talks were quickly arranged after a personal promise from President Bush to Blair, his most important ally in the invasion of Iraq.

Some felt the move smacked of political favoritism. Britain and Australia were the two main countries that contributed troops to the U.S.-led war.

"If they do this for the British, they've got to do this for everybody," attorney Tom Wilner said of the talks. He is the attorney for about a dozen Kuwaitis detained at Guantanamo.

About 660 prisoners captured in Afghanistan and elsewhere are being held at Guantanamo without charges or access to lawyers — some since January 2002.

Mr. Bush has recommended six, including the Australian and two Britons, to be the first to face tribunals established for the global war on terror. It has not definitely been decided that they will be tried, nor on what charges.

The Pentagon has refused to say what countries the other three are from, though press reports say they are a Sudanese, a Yemeni and a Pakistani.

The Australian is David Hicks and Britons are Feroz Abbasi and Moazzem Begg. Maj. John Smith, spokesman for the Defense Department's office on military commissions, indicated the Pentagon rejects the idea that the same concessions given them will have to be made for the others, saying the decisions were based on the merits of their individual cases.

Prosecutors looked at the evidence against Abbasi, Begg and Hicks and decided they wouldn't have sought the death penalty against them anyway, Pentagon officials said. Likewise, intelligence officers reviewed their cases and decided their conversations with attorneys wouldn't have been monitored anyway, officials asserted.

The next step in the tribunal process is for a chief prosecutor to draft charges against any or all of the suspects.

The acting chief prosecutor Army Col. Frederic Borch III told the Wall Street Journal last week: "First of all, I want cases with very strong evidence. I have to have a case that has good proof."

Once the prosecutor decides on charges, Deputy Defense Secretary Paul Wolfowitz will then make a separate decision on whether the suspects will actually face trials by what the Pentagon calls military commissions.

The Pentagon has refused to name the men, state what they were suspected of doing, where they were captured, or where they might be tried. It also has not said what would happen if the men were found innocent, raising at least the possibility that they might still be detained.