Convened for Special Circumstances, Tribunals Have a Way of Expanding

Few people doubted that Abimael Guzman was the most dangerous man in the country when he was brought before a specially created military court in 1992, tried and swiftly convicted by a panel of hooded judges. The founder of the Shining Path guerrilla movement had presided over bombings and massacres that terrorized Peru for more than a decade.

But the court created to try this nation’s most violent rebels soon broadened its mandate. After a time, alleged drug dealers and common criminals were being tried for “aggravated terrorism” in secret courtrooms before anonymous military judges, few of whom happened to be lawyers.

“The tribunals committed flagrant abuses against human rights,” said Maximo Rivera, former chief of Peru’s anti-terrorist police. About 600 of the more than 4,000 civilians convicted by military judges have since been acquitted by civilian courts.

The experiences of Peru, and many other countries that have resorted to military or special courts during times of strife, offer a cautionary tale to the United States, as President Bush has authorized the use of military courts to prosecute suspected terrorists.

‘Temporary’ Setups Become Long-Term

In Egypt, Brazil and other countries where civilians have been tried in military tribunals for the most violent acts of terrorism, those courts have become, over time, places where less serious offenses also are prosecuted.

And in places such as Northern Ireland, “temporary” courts given special powers to deal with “extraordinary” crimes have become long-term fixtures of the legal landscape.

Sometimes, the perceived lack of fairness of such courts has helped build sympathy for the very groups they aim to crush.

“As soon as you get a military officer as a judge, the independence of the judiciary is undermined,” said Neil Hicks, an attorney with Human Rights Watch who has monitored trials in Egypt.

Hicks believes that in Egypt, as in Northern Ireland, the extraordinary powers granted to prosecutors in special tribunals played into the strategy of the opposition groups by bolstering the argument that the government was arbitrary and undemocratic.

In Northern Ireland, Roman Catholic support for the Irish Republican Army grew after the British government instituted emergency measures that included special courts without juries. And in Egypt, the execution of more than 100 people by that country’s military tribunals did not extinguish the appeal of an organization that would eventually become an important part of the Al Qaeda network.

“People can argue that a military judge is acting under orders,” Hicks said. “They can say, ‘Look, these courts are just there to find us guilty so that they can kill us.’ ”

All of the courts offer a swifter, tougher brand of justice, in part by denying defendants many of the rights available in ordinary trials and giving prosecutors the right to introduce secret evidence.

Under the Bush administration proposal, those convicted in the military courts could appeal the verdicts only to the president or the secretary of Defense. U.S. officials have said that security concerns make secret military courts a necessity and that any suspects brought before the tribunals would be guaranteed a fair trial.

The former U.S. official who first called for the use of military tribunals in the war on terrorism says he sees no chance that they will be expanded to domestic cases.

“The president’s order limits their use to foreign nationals who are involved in an organized, armed attack on the United States. It doesn’t relate in any way to potential domestic matters,” said former U.S. Atty. Gen. William P. Barr, who served under the first President Bush. “These overwrought concerns about hooded judges and the like are way off base.”

The legal traditions of the United States embrace the rights of the accused to a much greater extent than those of Peru, Egypt and most other places that have tried civilians in military courts.

Spain established a military court to try Basque terrorists during the waning days of the Franco dictatorship in the 1970s but then quickly disbanded it, even though political violence remains.

In the Middle East, the Palestinian Authority has been widely condemned for military and state security trials that often amount to little more than summary executions. In January, two Palestinians accused of collaborating with Israel were tried, convicted and executed in less than two days.

Peru’s military tribunals took on especially dark, Kafkaesque dimensions before being phased out in the late 1990s. Defense attorneys were sometimes brought into court in blindfolds, then given only minutes to argue on behalf of their clients before being hustled out--once again blindfolded--and dropped off on a Lima street corner.

Alex Palacios Torero was arrested in 1993 and charged with being a member of a revolutionary organization. After being forced to sign a confession--he falsified his signature, a fact that would later help earn his release--he was put on trial.

Hustled to a secret courtroom with three other men, Palacios was seated on a dusty bench, facing a one-way mirror concealing a panel of secret judges.

“Behind the mirror you could hear distorted voices. It was frightening,” Palacios recalled. “I didn’t understand what they were saying or asking me. They were like metal voices, like a 45-rpm record played at a different speed.”

He was convicted. But after three years in custody, Palacios was retried by a civil court and found not guilty. Guards led him to the door of the prison and apparently to freedom--but the authorities were there waiting for him and placed him under arrest again, to face new charges back in military court.

Only in July was Palacios released, after pressure from human rights groups.

“I lost eight years of my life,” he said.

Public Support Usually Strong at the Outset

Most often, military courts have been created in times of deep fear and uncertainty, and usually with strong public support. When secret military tribunals were established in Peru, there was a very real sense that the country was at the mercy of terrorists.

“In moments of extreme danger for society, governments need to use mechanisms of protection,” said former Peruvian legislator Luz Salgado, a supporter of the get-tough measures.

The legal foundation for Egypt’s military tribunals dates to the state of emergency declared in 1981, after Islamists assassinated President Anwar Sadat. The courts were later used against organizations such as the Islamic Group and Egyptian Islamic Jihad.

The Egyptian government succeeded in eviscerating both militant fundamentalist organizations. Egyptian Islamic Jihad’s leaders fled to Afghanistan, where they transformed their mission from one of internal jihad--or holy struggle against Egypt’s regime--to external jihad, against the West.

The group became a key faction in the Al Qaeda network. The Islamic Group disavowed violence--in Egypt. Its spiritual leader was linked to the group of men convicted in the first attack on the World Trade Center.

Egypt’s emergency law also created a state security court that was similar to the military tribunal in many ways but was presided over by a civilian judge. In both courts, defendants were subjected to a quick trial with limits on their ability to pursue a defense. More important, they were denied the right to appeal the verdict.

Two decades later, the state security court is still conducting trials. Recently, it was used to convict a prominent civil rights activist, Saad Eddin Ibrahim, who was sentenced to seven years’ hard labor for criticizing the regime and calling into question the fairness of recent elections.

“Anyone who is referred to a military court is definitely getting a sentence against him,” said Mustafa Attia, an Egyptian defense lawyer who practices in military court. “There are no guarantees for neutrality or transparency.”

The Egyptian tribunals have been sharply criticized by the U.S. State Department.

Last week, the state security court sentenced 23 men suspected of being homosexuals to prison terms of one to five years. Twenty-nine others were acquitted.

“The government keeps claiming they only apply [the emergency law] against militants, but in several cases we have seen it used against human rights leaders,” said journalist Khalid Daoud. “The gay case is being tried in state security court. They are not terrorists or drug dealers. It is about punishment and deterrence.”

In Brazil, military courts dating to 1969, during a dictatorship bent on crushing leftist rebels and dissidents, remain in force.

“Brazil calls itself a democracy but keeps this authoritarian enclave,” said Jorge Zaverucha, a professor at the University of Pernambuco. “The military penal code is so wide that if a civilian throws a stone at a soldier, he will be tried by a military court.”

Pro-Military Lobby a Factor in Brazil

Attempts to eliminate the courts have been stubbornly resisted by Brazil’s strong pro-military lobby.

“The fact is that states of emergency have an enduring character,” said David Weissbrodt, a University of Minnesota law professor. “They get declared, and no one takes them off the books.”

At the height of the “troubles” in Northern Ireland in the 1970s, the British government created “Diplock” courts--named for the man who proposed them--to allow secret evidence and trials without jury. The law remains in force today, although the courts are no longer operating.

Now there is talk of using the Diplock courts against international terrorist suspects in the wake of the Sept. 11 attacks.

“People will object to it, but we are absolutely determined to get the balance right between human rights, which are important, and society’s right to live free from terror,” a government spokesman said last week.

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Tobar reported from Buenos Aires and special correspondent Tarnawiecki from Lima. Times staff writers David G. Savage in Washington, Michael Slackman in Cairo and Tracy Wilkinson in Jerusalem and Paula Gobbi of The Times’ Rio de Janeiro Bureau contributed to this report.