The Bush administration plan for trying suspected foreign terrorists before special military courts gives some ground to critics who feared the tribunals would run roughshod over due-process rights, but it retains some tough features that will make it easier for prosecutors to win convictions.
The administration briefed lawmakers Wednesday on a tribunal system designed to mete out swift justice without abandoning such basic principles as innocent until proven guilty, the right to counsel and the right to a public trial.
U.S. prosecutors would have more flexibility in introducing evidence than they would have in criminal courts, according to the procedures that are to take effect immediately with no congressional action. The rules also will limit appeals and allow for some secret proceedings.
Bush’s original executive order in November setting out guidelines for trying foreign terrorism suspects contained no provision for appeal and would have allowed trials to be held in secret. The death penalty could have been imposed without a unanimous vote of the panel, a standard the new rules require.
“The world is now beginning to see what we meant by a fair system that will enable us to bring people to justice and at the same time protect national security interests,” Bush said during a visit to an elementary school in Alexandria, Va.
Senior Pentagon attorneys briefed lawmakers in secret Wednesday. Officials familiar with the briefings described the outlines of the administration plan, set to be unveiled Thursday.
The Pentagon plan amounts to a special system of justice controlled by the executive branch. Prosecutions would take place before a military panel and appeals would be limited to a review board consisting of military officers and presidential appointees. The president or secretary of defense would have final say on carrying out sentences, including capital punishment.
Congress, courts excluded
Neither Congress nor the judiciary would have a role in the rules of the proceedings or in the trials themselves. The administration’s guidelines are to be released without a public comment period, but they do include several concessions to critics.
Initial reaction on Capitol Hill appeared favorable.
“If it basically follows the Uniform Code of Military Justice, even with some changes, I can live with that,” said Sen. Orrin Hatch (R-Utah), ranking Republican on the Senate Judiciary Committee.
Legal scholars reacting to the plan questioned whether a prosecution and trial system controlled entirely by the military and president would seem fair and just to the outside world.
“We are in a war for hearts and minds here in the international campaign against terrorism,” said Douglass Cassel, director of the Center for International Human Rights at Northwestern University Law School.
“A basic principle of international law is that justice must not only be fair but must be seen to be fair, and it’s difficult to see that anyone outside this country would see this tribunal as fair or impartial,” Cassel said.
Where, who to be decided
The administration has yet to decide several matters, such as where the tribunals might take place and who would be tried. At the moment there are roughly 300 mostly low-ranking detainees being held in Guantanamo Bay, Cuba. The Pentagon has indicated it would prefer to send most of the detainees to their countries of origin to face trial.
Bush said Wednesday that he had no plans to try a specific suspect under the new rules: “There’s nobody in mind yet.”
A key aim of the administration was to prevent terrorism suspects from using the U.S. criminal justice system to tie up prosecutors with defenses built around the usual rules of evidence.
The administration sought a speedy system that would enable prosecutors to use some of the evidence being collected by U.S. forces in Afghanistan at the former strongholds of Al Qaeda.
Among other concerns, the Pentagon wanted a system that would protect witnesses against retribution by terrorist groups and would enable prosecutors to temporarily close trials to the press and public so that classified evidence could be introduced.
ABA urged public input
The American Bar Association had urged the Pentagon to allow at least two weeks of public comment before making the tribunal rules final. In a letter to ABA President Robert E. Hirshon earlier this week, Pentagon General Counsel William J. Haynes II said the Pentagon decided against a public comment period based on “the need to move decisively and expeditiously in the ongoing war against terrorism.”
Major points of plan
Under the administration plan, as described by U.S. officials who spoke on condition of anonymity:
– Trials would take place before a panel of between three and seven military officers.
– Defendants would be provided court-appointed military lawyers; they could pay for their own private counsel.
– Hearsay evidence, and material evidence with a less than ironclad chain of custody could be introduced. For example, evidence obtained from Afghanistan battlefields would be allowed.
– Journalists would be allowed access to trials, but television cameras are barred.
– Proceedings could be closed for discussion of classified material.
– Conviction would require a two-thirds vote of the panel, as is allowed in court-martial cases but in contrast to the civilian criminal justice system, which requires unanimity to convict.
– Conviction in a case involving the death penalty would have to be unanimous. In all cases, guilt would have to be proved “beyond a reasonable doubt,” as in civilian courts.
– Appeals would be limited to a presidential panel headed by a military legal officer but possibly including civilian legal specialists and outside experts.
Pentagon spokeswoman Victoria Clarke predicted that when the details are disclosed, the plan will win the support of “people who understand what an unconventional time we are in and what unconventional circumstances we’re dealing with.”
Eugene Fidel, an expert in military law and president of the National Institute of Military Justice, said the Pentagon “at least heard the chorus of concern that was raised several months ago.”
He criticized the administration for issuing the rules without a period of public comment.
Better lawyers suggested
Mary Cheh, a law professor at George Washington University, questioned the Pentagon’s decision not to provide civilian attorneys “who can be sophisticated and really be a gladiator for the defendant.”
But she said scholars had feared even more Draconian tribunal rules, such as allowing non-unanimous convictions in capital cases and secret trials.
