- The Washington Times - Monday, February 4, 2002

PHILADELPHIA (AP) The Bush administration has privately told the American Bar Association that the nation's largest and most influential lawyers' group should not take a position now on the plan to try suspected terrorists before military tribunals, administration and ABA sources said yesterday.
The administration "made the request that the American Bar Association House of Delegates defer" any vote on military tribunals at the organization's meeting this week, ABA President Robert Hirshon said.
Mr. Hirshon said he told the White House that neither he nor other ABA leaders could prevent a vote. The 530 members of the policy-making House of Delegates "think their own minds," Mr. Hirshon said.
A senior administration official largely confirmed that account, although the official said there was no explicit request that the ABA pull its recommendations off the table. The administration thinks it inappropriate and premature for the ABA to take a stand before the Pentagon has finished writing rules for how the tribunals would operate, said the official, who spoke on the condition of anonymity. "They do not have the full facts," the official said.
Another senior administration official, also speaking on the condition of anonymity, said the ABA had indicated it would remain silent if the Pentagon would immediately publish the rules and guarantee defendants basic legal rights.
Mr. Hirshon denied there was "any discussion of a quid pro quo," although he said he did ask the White House last week whether the rules were imminent.
"I did not initiate any contact with the White House," Mr. Hirshon said, adding, "I do not see this as an issue of who asked whom to dance."
Tribunals have not been used in the United States since World War II. They generally provide fewer legal and constitutional guarantees for defendants and can operate with greater secrecy than ordinary civilian courts or military courts-martial.
Lawyers and academics have led much of the criticism of tribunals, contending that they are stacked against defendants and are an unnecessary, perhaps unconstitutional, end run around the established court system.
The ABA's policy-making legislative body was to vote today or tomorrow on whether to offer any support for the idea of tribunals. A compromise proposal would condition support on a list of guarantees about the way the special courts would operate.
Congress should have a say in how tribunals operate, and tribunals should abide by the settled rules for courts-martial, including the right to appeal to the Supreme Court, the ABA proposal says. It also recommends tribunals guarantee that defendants will be presumed innocent, that guilt be proved beyond a reasonable doubt and that death sentences require a unanimous verdict.
The United States also should not do anything that would undermine the rights of U.S. citizens tried abroad, the proposal says.
An order by President Bush in November asserted his authority to use military tribunals but left it to the Pentagon to detail how tribunals would work.
Lawyers at the ABA meeting said they assume the first tribunals will convene later this year to try suspected al Qaeda members overseas. The White House has said no American citizens would be prosecuted before tribunals.


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