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U.S.: Defense Department Modifies Rules For Military Courts In Terror War

  • Andrew Tully

Four months ago, U.S. President George W. Bush directed the Department of Defense to establish military commissions to try any foreign combatants in the war against international terrorism who are charged with war crimes. Civil libertarians complained that procedures for these courts, as outlined in Bush's order, made the commissions inconsistent with the strict rules under which American civil courts must conduct trials. The Defense Department has finally issued its regulations for the commissions, with several revisions welcomed by Bush's critics.

Washington, 22 March 2002 (RFE/RL) -- The U.S. Defense Department has issued its rules for the military courts, called "commissions," that will try some prisoners captured in the war against terrorism.

In their final form, the rules are much more sensitive to the legal rights of the accused than they were as originally outlined. Human rights advocates say the changes are welcome, though they say more improvements are necessary.

President Bush directed the Pentagon to set up the commissions in an executive order issued on 13 November, two months after the terrorist attacks on New York, Washington, and Pennsylvania and a month after the U.S.-led coalition began military action against Taliban and Al-Qaeda forces in Afghanistan.

There are several important changes in the final regulations governing the commissions, which were announced on 21 March. Perhaps the most important are that judges in a trial must vote unanimously to impose the death penalty on a defendant convicted of a capital crime. Under Bush's original order, a two-thirds majority was all that was needed.

And under the new rules, defendants will have the right to appeal convictions to review panels made up of military officers. This option was absent under Bush's initial outline.

But what is legally known as "hearsay" -- second-hand evidence -- will be permitted to make the trials more expedient. And unlike ordinary American military courts, appeals of convictions arising in the military commission will not be heard by the U.S. Court of Military Appeals, an independent judicial panel.

The judicial systems in America and in most other Western countries are based on the presumption that a defendant is innocent until proven guilty. This means that the prosecution is required to prove beyond what is called a "reasonable doubt" that the defendant is guilty. The defense is not required to prove innocence. Western justice also requires open trials to ensure that the public can see that they are conducted fairly.

The military commissions set up by the Defense Department will operate under this presumption of innocence, and will -- for the most part -- operate openly. The only exception to openness is that some evidence may be submitted privately if necessary to keep national secrets from the enemy.

In announcing the new rules at a Pentagon briefing, Defense Secretary Donald Rumsfeld said this and other deviations from civil judicial procedures are meant to strike an important balance between justice and security.

"In the months since the president issued his order [to establish the commissions], we have consulted with a number of experts from around the country, in and out of government, in and out of Washington, in an effort to come up with rules and procedures that will ensure just outcomes while protecting the American people from the dangers that are in fact posed by terrorists," Rumsfeld said.

Rumsfeld conceded that the rules of the commissions will not be quite as strict as those governing civil courts, but he promised that every effort will be made to ensure that the trials will be conducted fairly.

"We are a nation of laws, we have been attacked by lawless terrorists. The manner in which we conduct trials under military commissions will speak volumes about our character as a nation, just as the manner in which we were attacked speaks volumes about the character of our adversaries," Rumsfeld said.

James Phillips studies American foreign policy and national security at the Heritage Foundation, an independent research center in Washington. He says he applauded the revisions made to the commission in the four months since Bush directed the Pentagon to set them up. He told RFE/RL that it is important to eliminate any regulations that may give the appearance that the U.S. will not try the suspects fairly.

At the same time, Phillips said he agrees that the commissions have some procedural differences with civil courts and even courts-martial, if only to ensure the safety of those taking part in the trials.

"Using the same procedures we use in peacetime would endanger not only the prosecutors and the judges but possibly also people in the jury because these terrorists have been known to seek revenge, and I think the security concerns would support going with the military system," Phillips said.

James Ross, the acting general counsel of the New York-based advocacy group Human Rights Watch, said he believes these revisions were made expressly because of complaints made by his organization and other supporters of civil liberties about Bush's original order.

"Certainly the administration was responding to the complaints coming from a wide variety of sources, including from within the U.S. military, in creating these new regulations. That doesn't mean all the concerns were addressed, but clearly many of them appear to have been," Ross said.

But Ross told RFE/RL that despite these revisions, the military commission still have too many important exceptions to the rules of civil courts. In fact, Ross said there may be no need for these special military courts at all.

"Our view is that people who are responsible for crimes -- whether [they are] crimes against humanity, terrorist acts, war crimes -- they should be prosecuted for those crimes. And those courts should meet international standards. And there are different ways to address that. Our view is that you have U.S. courts, federal [civil] courts, you also have U.S. military courts that do meet international standards, and we would prefer to see that route taken," Ross said.

In fact, Ross said that if the regulations are not revised further, foreign countries may some day retaliate by singling out Americans -- whether soldiers captured in battle or civilians enjoying vacations -- for harsher justice than other foreign nationals receive.

"The U.S. has in many cases pressed hard for the protection of human rights in other countries, particularly when that affects Americans. And the U.S.'s ability to do that, whether it's in the context of the Geneva Conventions and captured U.S. soldiers or ordinary U.S. citizens is always hurt if [the] U.S. doesn't apply those standards here in the United States," Ross said.

Rumsfeld said the rules outlined on 21 March are not necessarily final. Members of the U.S. Congress already are being briefed on the military commissions, and many civil libertarians are speaking out forcefully on the subject. The defense secretary stressed that the commissions may undergo further revision, if warranted.