December
28
THE
MILITARY TRIBUNALS
Rules
on Tribunal Require Unanimity on Death Penalty
By
NEIL A. LEWIS
WASHINGTON, � The military tribunals that may be used to try Al Qaeda members
and others accused of terrorism will require a unanimous verdict to impose
a death penalty, although a two-thirds vote of the panel of military
officers will be enough to find someone guilty, according to rules drafted
by senior Bush administration officials.
In
addition, the draft regulations stipulate that a defendant is presumed
innocent and that the military panel may find someone guilty only after
deciding that the proof of guilt is beyond a reasonable doubt, the highest
standard of proof and the one used in civilian criminal trials, said
administration officials involved in producing the regulations.
But
hearsay and other kinds of evidence that would typically be excluded in
civilian trials would be allowed at the tribunals. The standard the
regulations provide would allow the military judges to consider any
evidence that "a reasonable person" would find useful. That means
that evidence like the videotape of Osama bin Laden boasting of the Sept.
11 attacks and any intelligence interceptions would be admissible.
Since
President Bush issued a military order on Nov. 13 establishing the
tribunals, the administration has faced criticism that the proposal allows
for wide-scale violation of civil liberties. In addition, there has been a
rich debate as to whether any defendants in terrorism cases should be tried
in civilian federal courts, in part to demonstrate the strength of the
nation's justice system.
Administration
officials said in response that they believed military tribunals were a
necessity when dealing with people accused of terrorism and war crimes for
reasons of security and to protect national secrets. But the draft
regulations demonstrate that officials have also been sensitive to the
criticisms and have incorporated provisions to deal with some of the
complaints.
Pentagon
officials said today that they were continuing to try to find a place
outside the United States, probably on a military base, where they could
conduct the tribunals.
Donald
H. Rumsfeld, the secretary of defense, said today that the military was
planning to hold many prisoners from Afghanistan at the United States naval
base at Guant�namo Bay in Cuba. But Mr. Rumsfeld said there were no plans
to hold the tribunals there.
"We
are making preparations to hold detainees there," Mr. Rumsfeld told
reporters. "We have made no plans to hold any kind of tribunal there."
He
said Guant�namo was "the least worst place we could have selected"
as a detention area.
An
official said one difficulty in finding an overseas base for the tribunals
was that many military installations, especially those in Europe, were
leased from countries that prohibit the death penalty. Holding the trials
on ships remains an option, although another official said that was being
thought of as a last resort.
The
military has already detained dozens of prisoners from Afghanistan who
could be subject to these tribunals, but no decisions have been made to
bring charges against any individuals, officials said.
One
official said the administration had not yet selected which people it
intended to put before a military tribunal. But the official said the early
estimates were that the tribunals could be used for several dozen prisoners.
Although the tribunals are intended largely for Taliban and Al Qaeda
members captured in Afghanistan, officials said they had not ruled out
using them for people arrested in other countries, including the United
States.
The
draft regulations are the work of lawyers in the Defense Department who
have consulted with officials at the National Security Council and the
Justice Department, officials said today. They said Mr. Rumsfeld was
expected to approve the regulations with little, if any, modification.
One
major modification that has been incorporated into the draft, apparently in
response to critics, is the provision for an appeals process. One
administration official said that after the verdict and sentencing by the
tribunal, which is to be composed of at least five uniformed officers, a
separate three-member panel would review the decisions.
The
appeal panel would accept arguments and pleas from the defense lawyers and
would then make a recommendation to the secretary of defense. The final
word on approving any sentence and verdict would be up to the president.
Under
the draft regulations, defendants would have military defense lawyers
appointed for them but would also be able to hire civilian lawyers.
"These
procedures show that we will conduct the military commissions in a very
full and fair way and that we're going to follow a high standard of justice,"
an administration official said tonight.
The
regulations also provide that the proceedings be open to the public and the
news media and may be closed only to prevent disclosure of national
security information. It is unclear whether information that is to be
withheld from the public could be available to the defendants and their
lawyers.
That
feature is similar to the Uniform Code of Military Justice, which governs
the rules of courts-martial of American servicemen and allows some evidence
to be kept from the defendants for security reasons even though it may be
used by prosecutors. The administration, in response to critics, has
asserted that the rules for military tribunals are similar to those in the
Uniform Code.
But
there are also several areas in which the military tribunal regulations and
those for courts-martial differ.
In
courts-martial, a three-fourths majority of the panel is needed to concur
on any sentence more than 10 years, said Eugene R. Fidell, a Washington
lawyer and authority on military law. The tribunal regulations would
require at least a two-thirds vote of the panel to impose a sentence less
than death.
Another
crucial difference is that the rules for courts-martial are similar to
those of civilian courts in requiring hearsay and other questionable
evidence to be excluded. Moreover, the results of courts-martial are
reviewable by a civilian court, the Court of Appeals for the Armed Forces,
and, ultimately, by the Supreme Court.
Administration
officials have designed the military tribunals to operate apart from the
civilian court system. If the trials are held outside the United States, it
is also unlikely that defendants would be able to use the writ of habeas
corpus in their appeals. Habeas corpus is commonly used by defense lawyers
to have federal courts intervene in death penalty cases and review them.
"With these regulations, some missing parts of the
canvas are being painted in," Mr. Fidell said, "and obviously
there seems to be movement in response to the kinds of concerns that have
been expressed. But there are also many discrepancies between the
regulations and the uniform code."
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