U.S. Readies Plans for Terror Tribunals

The Bush administration plans a military tribunal system for captives taken in the Afghan war that is similar to U.S. court-martial proceedings, but with far fewer appeals and a provision that could make it easier to win death sentences, Pentagon officials said Wednesday.

In addition, safeguards governing the rules of evidence will be relaxed, and military prosecutors will have the advantage of introducing documents and other material that normally would not be allowed in civilian courts in this country, the officials said, speaking on the condition of anonymity.

Secretary of Defense Donald H. Rumsfeld is scheduled to publicly unveil the administration’s long-awaited rules for the historic military tribunals today.

No tribunals have been scheduled for any of the prisoners of war now being held in Central Asia or on the U.S. naval base at Guantanamo Bay, Cuba. But the Rumsfeld announcement will set the stage for what will take place when the international community watches the United States mete out justice for those who allegedly took up arms against America after the Sept. 11 attacks.

“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 Wednesday.

Asked if tribunals were imminent, Bush said: “No plans right now. . . . There’s nobody in mind as yet. But the option is available.”

Though the new system is less severe than originally envisioned, civil rights groups and others quickly decried the proposal, saying it does not reflect the fair administration of justice that the United States prides itself on.

Timothy Edgar, an ACLU legislative attorney, said that despite the White House assertions, “these tribunals appear starkly different from regular courts-martial.”

He complained that because there would be only one level of appeal for anyone who is convicted, it will be “putting the lives of defendants solely in the hands of the president.”

And that system, he added, “will not respect basic American, and international, ideals of fairness and justice.”

Pentagon officials said the tribunals will be called “commissions,” and that the word “appeals” will not be included in the order outlining the regulations. Rather, the order will use the word “review.”

They said the system will be similar to courts-martial in that there will be a military setting and a military judge and jury. Each defendant will be tried separately, and will be provided a military lawyer; he also could privately retain a civilian attorney to bolster his defense.

The juries will range from three to seven members, the sources said, and verdicts must have the agreement of at least two-thirds of the jurors, unlike criminal courts in the United States that traditionally require a unanimous vote.

But under the tribunal system, a death sentence must be unanimous. However, if only three jurors end up hearing a case involving the death penalty, the smaller pool would increase the chances for a death conviction.

The sources said defendants would be allowed to see the evidence against them, but it could include some materials not normally allowed in most courtrooms.

An example is the material that has been found left behind in caves and homes in Afghanistan during the war. Although prosecutors could use it to incriminate defendants, most judges in U.S. courtrooms would consider the evidence dubious at best, because it could be difficult to link it directly to a specific defendant.

If a conviction is reached, a defendant would be allowed just one appeal, to a three-member review panel. That body, which would include a military judge, would be the one and final arbiter.

Unlike regular courts-martial, there would be no appeals to the federal courts or the U.S. Supreme Court. Instead, the president would act on any recommendation from the review panel.

“There will be a review of the findings by this review panel,” said one Pentagon official. “The word appeal does not appear in this order.”

The tribunals will be open to a limited number of media representatives, but closed whenever classified material is discussed, the sources said.

“The understanding will be they will be open to the maximum extent practicable,” one official said. “But there’s not going to be cameras or broadcasting.

“However, we hope that there will be an arrangement for press to cover them, either from a remote location with a satellite feed, or in the courtroom itself. But none of these will be held in a giant arena that can hold 50 million people.”

Sources stressed that no defendants have been singled out for hearings. But they have suggested that even though 300 detainees are being held in Cuba and hundreds more in Central Asia, there likely will only be a small number of tribunals.

Previously, it was estimated that tribunals could occur as soon as this summer. But Wednesday, it appeared they would begin much later, because U.S. military and intelligence officials are still sorting through evidence and interviews with detainees.

“I know I wouldn’t expect a commission to be formed any time soon,” the Pentagon official said. “No one here knows when. There’s just no decision yet on where they might be held, or for whom.”

Eugene R. Fidell, president of the National Institute of Military Justice, said he hoped the Bush administration will announce the order as recommendations only and allow a short time for the public to respond before finalizing the rules and regulations.

But William J. Haynes II, general counsel for the Department of Defense, told the American Bar Assn. on Tuesday that the Pentagon decided against allowing public input because of “the need to move decisively and expeditiously in the ongoing war against terrorism.”

Amnesty International USA said the lack of a lengthy appeal process was “deeply troubling,” especially because this will be a precedent-setting endeavor and foreign nationals will be tried by a government that is not their own.

“Military commissions threaten to severely undermine, rather than reinforce, confidence in the administration of justice and maintenance of the rule of law,” said the group’s executive director, William F. Schulz. “We fear that in the proceedings undertaken by military commissions, justice may neither be done, nor seen to be done.”

However, Victoria Clarke, assistant secretary of Defense for public affairs, defended the “new legal system to deal with very unconventional circumstances.”

“We think this is a very good package,” she added. “When people see the whole thing in its appropriate context, they will determine it to be a very fair and balanced and just system.”

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