- The Washington Times - Thursday, March 21, 2002

The Bush administration will issue rules today for military tribunals trying Islamic terrorists, which yield ground to civil liberty concerns but will allow evidence that ordinary U.S. courts would probably exclude. There will be no appeals to federal courts.
In response to pressure from critics of the tribunals, the administration's plan will revise the death-penalty standard to allow conviction and death sentence only by unanimous vote of a seven-member commission. Guilt in other cases must be proven beyond a reasonable doubt as judged by a two-thirds vote of three to seven military officers, according to an outline of the plan that emerged yesterday.
By adopting President Bush's Nov. 13 order to allow evidence with "probative value to a reasonable person," the plan relaxes rules of evidence from federal court standards that often throw out incriminating material.
The president does not intend to implement the rules soon.
"No plans right now. … Nobody in mind as yet," he said.
Defense Secretary Donald H. Rumsfeld is expected to release today details about how the tribunals would operate. He has said the panels will be used in rare cases and will be reserved for al Qaeda and Taliban leaders. This has elicited accusations that foreigners will be subjected to a double standard in the courts.
Whenever a tribunal might be convened, the new rules will mean the military panels can accept proof obtained by hearsay, documents not under continuous control of authorities, and material seized without warrants or by interrogators who did not advise suspects of their rights.
That would open the way to introduce al Qaeda records and other documents found in abandoned hide-outs in Afghanistan.
"I'm waiting to see what the regulations say about the exclusionary rule, the Fourth Amendment and the Miranda rule requiring that suspects be advised of their rights to be silent and have an attorney," said Eugene R. Fidell, president of the National Institute of Military Justice (NIMJ), an organization of military-law experts that requested a two-week comment period before the rules are finalized.
"Unanimity on death sentences is obviously an area where they came under fire," said Mr. Fidell, an influential adviser on military law. As of next year, he noted, military courts will require 12 members and a unanimous vote in capital cases.
National Public Radio reporter Barbara Bradley, who first reported the story yesterday about the completion of the rules, said: "In most ways these tribunals will look a lot like a court-martial that an American soldier would face."
Both systems will presume defendants are innocent until proven guilty. They will be given the choice of a military lawyer or the right to hire civilian counsel, as well as being allowed to review evidence.
But differences include a ban on access to the U.S. Court of Appeals for the Armed Forces.
Limited appeal would be permitted only to new three-member review boards appointed by the president, reversing the no-appeal rule Mr. Bush issued in his "military order" setting up the tribunal system.
That order granted tribunals "exclusive jurisdiction" and forbade "any proceeding, directly or indirectly … in any court … or international tribunal."
Mr. Fidell said that conflict could be corrected by issuing a new order "to put the regulations in sync with the president's Nov. 13 order."
Mr. Fidell expressed "grave doubt" that enemy alien prisoners held outside the United States could seek Supreme Court review, but he said he expects lawyers will try it.
Mr. Bush cast doubt on press reports that the substance of tribunal sessions would stay open to the public and the media. He suggested that the trial of al Qaeda and Taliban leaders may have to be conducted in secret to protect U.S. national security.
"If any evidence required to convict him jeopardizes the security of the United States, we'll use a tribunal," Mr. Bush told reporters during a visit to an Alexandria school.
Some critics remain skeptical or undecided about the use of military panels. This includes Amnesty International, which opposes the tribunals.
"The proposed commissions would be inherently discriminatory by affording foreign nationals a lower standard of justice than U.S. nationals," the group said.
Victoria Clarke, the Pentagon's chief spokeswoman, yesterday called the tribunal regulations a group effort representing "an extraordinary level of participation and involvement throughout the administration."
However, Mrs. Clarke refused to disclose details of the plan or answer questions.
"It is unfortunate the bits and pieces are leaking," she said, preferring that the entire plan be presented in one piece after Congress saw it. "Consulting with Congress is an important thing. … It is appropriate to consult with Congress on this."
Members of Congress were being briefed on the plan yesterday.
"Under ordinary circumstances, we need to have as many protections as we could possibly have," said Sen. Ben Nelson, Nebraska Democrat and an Armed Services Committee member. But he said the war on terrorism allows for such secrecy exceptions as closing the courtroom for classified information.
Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee, introduced a bill yesterday to limit the use of tribunals and to ensure better confinement, fair trials and rights of appeal for the detainees.
He also criticized the military for not consulting Congress beforehand.
It was not clear whether congressional review might result in rule changes. A Senate Judiciary Committee staff member said that panel's oversight hearings obviously influenced key aspects of the final rules, including unanimity for a death-penalty verdict and proof beyond a reasonable doubt.
The NIMJ received a noncommittal Pentagon reply, saying Mr. Rumsfeld had not decided on a comment period and assuring the military-law group that the rules will provide "full and fair" trials as has been practiced in the American tradition.



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