- The Washington Times - Friday, March 22, 2002

Pentagon officials yesterday said military tribunal trials for al Qaeda and Taliban leaders will resemble the Nuremberg war-crime trials.

Defense Secretary Donald H. Rumsfeld insisted the trials of accused terrorists won't be "kangaroo courts."

"They're fair and balanced and justice will be served by their application," Mr. Rumsfeld said as he issued final rules for a new military justice system.

But Mr. Rumsfeld's top policy and legal advisers backed away from claims the Supreme Court cannot intervene, despite President Bush's order that defendants "not be privileged to seek any remedy or maintain any proceeding … in any court of the United States."

"It's not within our power to exclude the Supreme Court from the process," Pentagon policy director Douglas Feith said.

"Far be it from me to tell the Supreme Court not to do something," echoed Pentagon General Counsel William J. Haynes II, who expects Afghan-based terrorists will have vigorous lawyers who "seek every avenue they can to protect the interests of their client."

Among provisions for the quasi-public tribunals is a process allowing the presiding officer to arrange witness-protection measures that may include testifying by telephone or remote television, closing the court during testimony, and using false names.

"Any sentence made final by action of the president or secretary of defense shall be carried out promptly," say the Pentagon rules, which do specify what offenses may be charged or indicate which are punishable by death.

Battlefield prisoners acquitted of war crimes, terrorism or being unlawful combatants should not expect quick release, Mr. Haynes cautioned.

"We are within our rights, and I don't think anyone disputes it, that we may hold enemy combatants for the duration of the conflict. And the conflict is still going and we don't see an end in sight right now," Mr. Haynes said.

Rules for the tribunals will admit evidence that federal courts would throw out, allow plea bargaining, presume defendants innocent until proven guilty "beyond a reasonable doubt," and require unanimous votes by a seven-member court for death sentences. Sensitive information may be kept secret from defendants and civilian lawyers, but not from appointed military lawyers.

The policies grant extensive powers to the defense secretary. He is the "appointing authority" to assign prisoners for trial, chooses members for tribunals and review boards, and is the final arbiter of convictions except for the president.

Convictions automatically will be reviewed by three-member review boards that are limited to returning a case to the tribunal or recommending action by the defense secretary. That action cannot include changing an acquittal to guilty.

Mr. Rumsfeld said the system's purpose is "to get [terrorists] off the streets so they cannot murder more American citizens." But he and Mr. Haynes emphasized that evidence has been so difficult to gather that no cases yet have been assigned to military commissions, as they called the tribunals.

"We're still interrogating and talking to the people that we have detained [at Guantanamo Bay] and it's fair to say they're singularly uncooperative," Mr. Haynes said.

Mr. Rumsfeld dismissed concerns from groups like the American Civil Liberties Union and Amnesty International and said the system will assure defendants a fair trial but also protects Americans' rights "to live as they were meant to live, in freedom, and without fear of terrorists."

Although the administration believes Congress has no power to act on the tribunals, key members were briefed Wednesday. Rep.Lindsey Graham, South Carolina Republican and member of the House Armed Services Committee, said the procedures "struck a good balance."

Amnesty International continued to protest the system which Executive Director William Shulz said, will hurt the nation's image at home and abroad.

"We fear that in the proceedings undertaken by military commissions justice may neither be done, nor be seen to be done," Mr. Shulz said.

The Nuremberg references recalled the trials of 21 Nazi leaders, followed by a dozen other major trials between 1946 and 1949 conducted by tribunals of three American lawyers.

Mr. Feith said one key difference between the Nuremberg tribunals and the "full and fair trials" Mr. Bush ordered in the wake of the September 11 attacks are that the government won't wait until the war ends.

"We are fighting a war that's going to last for a long time, and we want to try to bring justice to some of these individuals while the war is still under way," the Pentagon policy director said.

He said a system geared to keep the trials from interfering with the war, would provide a basis for interrogations and intelligence-gathering that assists war efforts.

Amy Fagan contributed to this report.


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