Pentagon Argues Its Case for Military Tribunal System

Top Pentagon officials sought to assure senators Wednesday that establishment of military tribunals would provide a faster, more streamlined way of trying individual terrorists, even though it will not be used for the first person indicted on terrorism-related charges.

Deputy Defense Secretary Paul D. Wolfowitz said Justice Department officials never consulted the Pentagon about Zacarias Moussaoui, accused of conspiracy in the Sept. 11 attacks on the World Trade Center and the Pentagon, before prosecutors decided he will be tried in a traditional court.

Some senators expressed concern Wednesday that the Moussaoui decision could undercut President Bush’s creation of special military tribunals to try terrorists accused of war crimes.

Moussaoui Called Likeliest Candidate

“What greater violation of the laws of war could there be?” Sen. Joseph I. Lieberman (D-Conn.) asked Wolfowitz at a Senate hearing. “If we will not try Zacarias Moussaoui before a military tribunal, who will we try in a military tribunal?”

Moussaoui, 33, a French Moroccan in U.S. custody since August, was indicted Tuesday on charges of conspiracy to murder thousands of Americans in the first criminal charges related to Sept. 11. He was accused of plotting with extremist Osama bin Laden and others in attacks on New York and near Washington.

William J. Haynes, the Pentagon’s general counsel, told Lieberman that military tribunals are designed for foreigners suspected of “war crimes” who are captured during hostilities after Sept. 11. But Moussaoui “was apprehended on immigration charges before Sept. 11 and was already in the U.S. criminal justice system,” he said.

Although Moussaoui’s case was not discussed specifically, Haynes said Pentagon lawyers have been in consultation with Justice Department attorneys in drafting regulations creating the special tribunals ordered by Bush last month. The work is ongoing, he said.

At the White House, Press Secretary Ari Fleischer said that, after conferring Monday in the Oval Office with Atty. Gen. John Ashcroft, Bush decided Moussaoui should be prosecuted in federal court.

Fleischer said Bush was satisfied from Ashcroft’s briefing that Moussaoui’s trial in open court would not compromise national security secrets or endanger any “sources or methods” of the U.S. intelligence community.

Ashcroft recommended a standard criminal trial in federal court open to the public, and Bush concurred, Fleischer said. But he added that Bush still could change his mind.

“If subsequent information were to be received in the course of developing facts and information, the president’s options remain open,” Fleischer said.

“It’s the president’s decision who goes to the military tribunals,” Justice Department spokeswoman Susan Dryden said. “What the attorney general and the Department of Justice wanted is set forth in the indictment. We have chosen the path that we felt was best for the interests of the nation.”

Testifying before the Armed Services Committee, Wolfowitz said military tribunals are needed because the pursuit of Al Qaeda terrorists “is not a law enforcement action--it is war.”

“When coalition forces storm a Taliban compound or an Al Qaeda safe house,” he added, “they cannot first ask for a search warrant.”

Tribunal Justice Likely Swifter

Many traditional constitutional safeguards provided to U.S. criminals would not be given to these “foreign aggressors,” Wolfowitz said. For example, suspects would not be advised that they can remain silent, and military tribunals would be unlikely to allow evidence to be challenged because of the circumstances under which it was seized, he testified.

As such, he said, such tribunals likely would progress at a faster pace than civilian courts, with fewer challenges to the evidence permitted.

But Wolfowitz’s assurances that legal scholars and former jurists are being consulted in drafting “full and fair” rules for military tribunals did not allay the concerns of some senators.

Sen. Carl Levin (D-Mich.), the committee chairman, and Sen. Edward M. Kennedy (D-Mass.) both told Wolfowitz that sufficient safeguards should be provided in tribunal regulations to avoid the specter of Peruvian and Colombian military courts that have prosecuted alleged terrorists with scant concern for defendants’ rights, such as the case of American Lori Berenson, who has been in Peruvian custody for years.

“We should work to ensure the military commissions will operate in a manner that doesn’t cause other nations, including our allies, to refuse to extradite suspected terrorists to the United States because of the lack of due process provided by such commissions,” Levin said.

He said that “a full and fair trial” should allow for a presumption of innocence and permit the accused to present witnesses. The accused also should have a right to select his own counsel or have one assigned to him if he cannot afford counsel, Levin said.

Kennedy said that, while special tribunals are provided for in the Constitution, “over the years our government has opposed military tribunals in other nations because of their failure to provide adequate due process.”

Kennedy said he welcomed the prosecution of Moussaoui in federal court.

“To the fullest extent possible, we should use our domestic courts to try terrorists, and let the military focus on what it does best--protecting our country and our freedoms.”

Other committee members said there was little need to extend to suspected foreign terrorists the traditional protections afforded criminals in this country.

“I would not want to be in a position,” said Sen. Bob Smith (R-N.H.), “where Osama bin Laden was let go because someone did not read him his Miranda rights.”

Times staff writers Edwin Chen and Josh Meyer contributed to this report.