- The Washington Times - Friday, April 18, 2003

Military planners have settled on the final legal steps for the tribunals to try "unlawful combatants" among al Qaeda and are said to have zeroed in on the likely chief prosecutor and chief defense lawyer.

Army Col. Frederick L. Borch III is the top contender to lead the prosecution staff, and Air Force Col. Willie A. Gunn is in line to be chief defense counsel, Legal Times reported this week.

Line prosecutors, defense lawyers and trial judges will be drawn from all uniformed services, although defendants may have private attorneys.

Col. Borch has written several books, including his 2001 "Judge Advocates in Combat," in which he reported that, during the 1991 Gulf war, Army Gen. Tommy Franks radioed a ranking military legal officer to ask whether "burying the enemy alive in his own trenches was permitted under the Law of War."

Gen. Franks told the judge advocate general that troops were using bulldozers and he could "stop it now" if it was a war crime. But, Col. Borch wrote, the general was assured that it was lawful and was advised to mark sites so the Red Cross could retrieve bodies.

Both Col. Borch and Col. Gunn have long held leadership roles in the military justice system, and neither spoke to reporters.

Col. Borch is deputy chairman of international law at the Naval War College and taught at the Army Judge Advocate General's School in Charlottesville. He graduated from University of North Carolina law school and has a master's degree in law from the University of Brussels.

Col. Gunn, who holds law degrees from Harvard and George Washington universities, supervised all Air Force defense counsels for the central United States for two years before his latest assignment at the Pentagon as executive assistant to the Air Force judge advocate general.

Defense Department and State Department officials recently specified the war crimes under the jurisdiction of "military commissions," the so-called tribunals that President Bush authorized in November 2001 for the 600 or so al Qaeda figures held at U.S. Naval Base Guantanamo Bay, Cuba. Among the war crimes are false use of the white flag, use of human shields and fortifying hospitals.

Iraqi offenders are to be dealt with separately, by U.S. military courts in Iraq for crimes against military forces in this war and in Iraqi courts for crimes against humanity committed under Saddam Hussein's regime.

Army Col. John Della Jacono, a specialist on prisoner issues, said that the U.S.-led coalition holds 7,800 Iraqi prisoners in Umm Qasr and will soon begin preliminary tribunals that, under Article 5 of the Geneva Convention, can strip prisoner-of-war status from "unlawful combatants."

"I think the lawyers are gearing up," he said of a process to separate Iraqi prisoners of war, immune from prosecution, from interned civilians who committed crimes against coalition forces or are security risks.

The International Committee of the Red Cross registered 3,800 Iraqi prisoners as of April 6 and sent 15 delegates and interpreters to Umm Qasr yesterday to identify the rest. An additional 236 POWs are in military hospitals or aboard the Navy hospital ship the USNS Comfort.

A retired naval officer who is among the top military lawyers interviewed for the prosecutor position told The Washington Times last year that the Pentagon also seeks a staff judge advocate for the tribunals.

"I feel certain the trials will be at Guantanamo Bay, because an alien tried outside the U.S. on foreign soil has no ability to go into federal court and seek habeas corpus," said the retired officer, now in private practice, who asked not to be named. The Supreme Court will decide shortly whether a group of clergy, lawyers and academics have legal standing to attack that legal rule.

The apparent first choice for the prosecution, Col. Borch, 48, is a veteran government advocate who criticizes Supreme Court decisions that narrow defendants' Sixth Amendment rights to confront witnesses at trial and Fourth Amendment guarantees against unreasonable search and seizure.

"It is incredible that in the late 20th century, it is not absolutely known whether the Bill of Rights, and in particular the Fourth Amendment, apply to those sworn to defend it," Col. Borch wrote in 1994 the William & Mary Bill of Rights Journal.

Col. Gunn, 44, is a defense specialist whose record of published appellate decisions is largely limited to Court of Federal Claims pay disputes and unwanted separation from the service. He is a former White House fellow who is known among legal scholars for advocating race-conscious "environmental justice" to curb hazardous exposure of minorities and the poor.

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