- The Washington Times - Wednesday, December 12, 2001

Defense Secretary Donald H. Rumsfeld said yesterday that only the leaders of al Qaeda and the Taliban will face U.S. military tribunal trials.
He also said the United States had received assurances that Osama bin Laden and his top aides will not fall into the hands of allies who oppose their execution.
"It's not hundreds or thousands" who would be tried in military tribunals, Mr. Rumsfeld said as he disclosed the first details of how the Bush administration intends to deal with enemy forces in postwar Afghanistan amid prospects of imminent mass surrender by al Qaeda forces.
Ordinary al Qaeda troops will face prison sentences, perhaps in their home nations if those states will treat their crimes with the severity sought by Washington. Rank-and-file Afghan Taliban troops will be left for their new Kabul government to deal with, he said.
"Senior level of Taliban are quite different. They need to be punished, and they need to be taken care of by somebody," Mr. Rumsfeld said.
Before any trials begin, U.S. and allied troops will question all prisoners where they are captured, not for law-enforcement purposes, but to obtain intelligence that Mr. Rumsfeld said would protect American lives in the United States as well as on the battlefield.
Prisoners will be moved to prison camps under U.S. control until their identities and fates are sorted out. None is expected to be brought to the United States.
Trials of noncitizens violating "the laws of war" may be held wherever defendants are found.
Officials may impose security procedures to protect state secrets or shield identities of the officers who sit as judge and jury and decide verdicts and sentences by two-thirds majority.
"With respect to al Qaeda, from the top to the bottom, they're bad folks doing terrible things," Mr. Rumsfeld said. "It would be just a crime if they are let loose in any way to go to the neighboring countries or to other countries, our country, or anywhere in the world to continue the terrorist acts that they've been engaged in.
"The senior al Qaeda leadership we obviously hope to get control over and have a very deep involvement as to what their ultimate disposition might be," Mr. Rumsfeld said.
He said the group facing U.S. military tribunals would be small and that no decision has been made to close those trials to the public.
"My guess is it would be handled differently with respect to different individuals," said Mr. Rumsfeld, who was placed in charge of the process by President Bush's Nov. 13 order authorizing military commission trials.
Mr. Rumsfeld said allies have assured him of a free hand on what he called the U.S. "idiosyncrasy" that military trials must include the possibility of death sentences.
"The response we've received is 'not to worry,'" Mr. Rumsfeld said when asked whether Britain or other European Union nations with troops in Afghanistan might not turn over captives charged with plotting or aiding the September 11 terrorist attacks because of objections to the death penalty.
He told reporters that military forces from nations that do not agree to U.S. trials will not be allowed in areas where bin Laden or other al Qaeda leaders might be captured.
Debate about Mr. Bush's order to use military trials for civilians not done since World War II has swirled over charges that it is un-American.
Michael Nardotti, a former Army judge advocate general, defended the fairness of military commissions and said their disuse since World War II "doesn't make the proposition any less valid."
He said military commissions after World War II had an 85 percent conviction rate in war-crime trials of some 1,700 people in Europe and almost 1,000 from the Japanese theater. That meant acquittals were achieved at twice the rate now common in federal courts and military courts-martial, where 93 percent of defendants are convicted.
"These were U.S. military officers who sat in judgment of their enemy," Mr. Nardotti said.
The fact that 2,700 people among the millions from all theaters of war were tried after World War II seems consistent with Mr. Rumsfeld's statements yesterday that military courts will be highly selective.
Specific cases for trial under the current authorization must be approved by the president, and a White House spokeswoman said yesterday that Mr. Bush must do so in writing specifying each defendant and court member by name as President Franklin D. Roosevelt did in setting up a 1942 court.
Defenders of Mr. Bush's order say military justice is good enough for young Americans in uniform who risk their lives to defend their country, so it should be good enough for bin Laden and his aides. But military-law experts say courts-martial do not follow the guidelines Mr. Bush prescribed for the tribunals' rules of evidence, appeals or death sentences by two-thirds vote.
"There's consternation among military lawyers about the potential for confusion between military commissions and courts-martial," said Eugene R. Fidell, a highly regarded specialist in military law and president of the National Institute of Military Justice, which has taken no position on the order.
Mr. Fidell said military courts-martial allow a broad range of appeals through military courts, then to a special appeals court with civilian judges and on through the civil courts to the Supreme Court.

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