KATHARINE Q. SEELYE with SHERRI DAY
New York Times
Thursday, March 21, 2002
WASHINGTON, March 21 — Defense Secretary Donald H. Rumsfeld
made public today the Bush administration's rules for conducting military
tribunals for prisoners from the Afghan war, opening the door for the United
States to prosecute and possibly execute foreigners by a legal process
not used since the Truman presidency after World War II.
Mr. Rumsfeld said the government had been working for
months to find ways to conduct the tribunals, known as commissions, in
a manner that is consistent both with America's national security issues
and with fairness and justice under American law.
"Let there be no doubt, commissions will conduct trials
that are fair and impartial," Mr. Rumsfeld said at a Pentagon news conference
this afternoon. "At the same time, while ensuring just outcomes, the procedures
are also designed to respond to the unique circumstances for which they
It is by design, Mr. Rumsfeld said, that the military
tribunals will function in a manner that differs from both the federal
court system and the military court system.
"The commissions are intended to be different, and the
reason is because the president recognized that there had to be differences
to deal with the unusual situation we face," Mr. Rumsfeld said.
In establishing the rules, , the administration made concessions
to critics who worried that President Bush's original order on Nov. 13
that established such tribunals had codified a secret rigged system that
could simply shuttle defendants to hasty deaths.
The rules now require a unanimous verdict by a seven-member
panel for the death penalty, let the press cover most proceedings and provide
for defendants to have military lawyers at government expense and also
hire their own civilian lawyers at their own expense.
The rules also say suspects will be presumed not guilty
and can see the evidence against them. They also require the highest standard
of proof, saying that a tribunal can find someone guilty only beyond a
Officials said the rules on introducing evidence were
looser than those in civilian courts, with hearsay allowed, as well as
any evidence that would be convincing to a "reasonable person."
The rules do not provide a process for independent appeals,
a procedure that critics also sought, keeping control of the tribunals
in the military chain of command.
In a surprise move, administration officials said they
would invoke a rarely used presidential power to appoint civilians as temporary
military officers to be judges on a review panel in lieu of an appeals
court. The panel, appointed by Mr. Rumsfeld, would have three people, one
of whom must have experience as a judge, either in civilian or military
courts. If any judge is a civilian, the president would appoint the judge
temporarily as a military officer, administration officials said Wednesday.
The power is allowed just in national emergencies, which
administration officials said existed now. The president can appoint civilians
as military officers up to the grade of major general for a period of up
to two years.
Mr. Bush will have final review of the cases, although
he has already called the prisoners to be tried "killers."
"They don't share the same values we share," he has said.
Officials said the purpose of appointing civilians as
military officers would be to keep the entire process in military control.
The administration is trying to make certain that no part of the tribunals
can slip into civilian courts.
The executive director of the Center on Law, Ethics and
National Security at the Duke University Law School, Scott L. Silliman,
said, "Once you open up review in an established court, you open up the
specter of further appellate review."
The administration has yet to determine a number of matters,
including the sites of the tribunals, when they would start and who might
be tried. Officials said the trials might not begin for several months,
because investigators were still sifting through evidence obtained on the
battlefield and were hitting a brick wall with prisoners who refuse to
tell the truth.
This afternoon, Secretary Rumsfeld said locations for
the trials had not been chosen because "we do not have any candidates yet
to be tried before the commissions."
Some administration officials said a likely setting for
the trials would be the United States Naval Station at Guantánamo
Bay, Cuba, because they would be shielded from the jurisdiction of United
That view is not a legal certainty, however, and the administration
is wrestling with finding a locale that would afford the military the most
control and prevent the federal courts from intervening in death penalty
Top lawyers throughout the administration have been engaged
in intense internal debate over the last four months about the rules to
try the hundreds of prisoners at Guantánamo and in Afghanistan.
Officials said on Wednesday that they had not decided what to do with those
whom the military tribunals would not try, although Mr. Rumsfeld has said
they could be held indefinitely or returned to their home countries if
the United States received assurances that they would be punished.
Administration officials said their primary concerns were
to safeguard classified information, provide security for court personnel,
remain flexible as the war evolved and accommodate the broad range of evidence
that they are gathering.
The administration was surprised by the strong reaction
of even friendly lawyers to Mr. Bush's original order. The administration
has rejected requests from the American Bar Association and the National
Institute of Military Justice that it provide a comment period on the rules,
citing "the need to move decisively and expeditiously in the ongoing war
But the administration did seek advice from outside experts,
including Griffin B. Bell, a former attorney general; William T. Coleman,
a Washington lawyer and transportation secretary in the Ford administration;
Lloyd N. Cutler, a prominent Democratic lawyer; Martin R. Hoffman, a former
Army secretary; Bernard D. Meltzer, a former prosecutor at the Nuremberg
trials who is a professor at the University of Chicago; and Newton N. Minow,
a former chairman of the Federal Communications Commission and longtime
friend of Mr. Rumsfeld.
Mary Cheh, a professor of criminal procedure and constitutional
law at George Washington University, said the administration appeared to
have listened to some critics.
"Over all," Professor Cheh said, "they've given ground
on points that are fundamentally important. The openness and civilian attorney
and proof beyond a reasonable doubt — that combination, even against a
different evidentiary standard, is far more palatable and at the end of
the day is within the range of reasonableness."
The lack of an independent appeals process drew continued
criticism today from human rights groups that otherwise commended the administration
for providing defendants what they called fair considerations of due process.
Amnesty International said the lack of appeals gave "unfettered
and unchallengeable discretionary power to the executive to decide who
will be prosecuted and under what rules, as well as to review convictions
The rules call for an authority named by the defense secretary
to appoint members of each tribunal, which will have three to seven members.
Any tribunal hearing a case involving the death penalty has to have seven
The members would come from the ranks of military officers
who are retired, reservists or on active duty. The appointing authority
is to designate one as the presiding officer and is to be a judge advocate
of any branch of the military.
The prosecutors are to be judge advocates or special trial
lawyers from the Justice Department. The suspects can replace their military
lawyers with another military lawyer, as well as have their own civilian
lawyers, provided that the lawyer is an American citizen and cleared to
receive secret information. When classified information is presented, the
civilian lawyer may be excluded, but a military defense lawyer will always
be present. The military may create a pool of qualified civilian lawyers.
The crimes the suspects may be charged with are crimes
of war, as well as aiding the enemy and spying. The accused may present
evidence at their trials and cross-examine witnesses for the prosecution.
Conviction requires a vote of two-thirds of the tribunal. The death penalty
requires a unanimous vote.
Rules for Military Tribunals
A comparison of some rules for military tribunals
for terrorism suspects with courts-martial and civilian courts.
||RIGHT TO COUNSEL
||COMPOSITION OF JURY
||VOTE REQUIRED TO CONVICT
||RULES OF EVIDENCE
||VENUE FOR APPEALS
|CIVILIAN FEDERAL COURTS
||Accused chooses own lawyer/ or one is providedif the accused cannot
||12 members drawn at random.
||Unanimousdecision to convict and to impose sentence/ including the
||Strict federal rules of evidence apply/ including of custody chain
||United States Court of Appeals/ then the Supreme Court
||Government provides a military lawyer; accused canrequest one of own
choosing. Can also pay for a civilian lawyer.
||For serious offenses/ at least five military members selected bythe
||Two-thirds vote to convict in non- capital cases;unanimous vote required
for conviction and sentencing in death penaltycases.
||Strict military rules of evidence apply/ virtually identical tothe
federal rules of evidence.
||Cases are subject to review by militaryCourt of Criminal Appeals/ the
Court of Appeals for Armed Forces and thenthe Supreme Court.
||A military lawyer provided/ and the accused canreplace with one of
own choosing. Accused can also pay for a civilianattorney.
||Three to seven military officers appointed by the military. Seven members
required for death penalty cases.
||A two-thirds vote requiredto convict. Decision to impose the
death penalty would have to beunanimous.
||Evidence can be admitted if it "would have probative valueto a reasonable
||A review panel appointed by the Secretary ofDefense/ which could include
civilians temporarily appointed as officers.
Sources: Administration officials (commissions); National Institute
of Military Justice (courts-martial/ federal courts)
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11, 2001 Forum