May 06, 2003

Tribunals are ready, but there’s no one to try yet

By Pete Yost
Associated Press

A prosecutor and defense lawyer are lined up for military tribunals that might try some of the accused terrorists who have been captured across the globe. Courtroom rules are set, too. All that’s needed now are the defendants.
Lawyers familiar with the matter say they believe only a small number of the approximately 660 detainees captured in the war on terrorism and held at Guantanamo Bay Naval Station, Cuba, will ever appear before the tribunals. No one is certain who would be the first.

In the meantime, the Pentagon is considering Army Col. Frederic Borch III to be chief prosecutor overseeing military commission trials and Air Force Col. Willie Gunn to run the chief defense counsel’s office, according to lawyers. They would supply the pool of military legal talent for the prosecution and the defense.

The Bush administration has categorized the detainees brought to Guantanamo Bay as unlawful combatants, not prisoners of war. They have no constitutional rights because they are non-U.S. citizens held outside U.S. territory on land leased from Cuba. Legal advocacy groups are in court seeking recognition of constitutional rights for the detainees.

Guantanamo Bay is a likely location for any commission trials. The Pentagon has listed 18 war crimes and eight other offenses that could be tried, from terrorist acts to false surrenders.

The detainees are former Taliban fighters and others from 42 nations, thought at the time of their capture by the U.S. government to have connections to terrorist groups. In most instances, they were picked up in Afghanistan and Pakistan.

Now after lengthy interrogation, many of the detainees are thought to be low-level former Taliban fighters, unlikely prospects for commission trials. Several are juveniles. More than a dozen Guantanamo detainees will be sent home this week, while an additional 30 or so are to be brought in.

When the detention center in Guantanamo opened in January 2002, Vice President Dick Cheney called the men in custody there and in Afghanistan “the worst of a very bad lot.” On a trip to Guantanamo, Defense Secretary Donald H. Rumsfeld called them “among the most dangerous, best trained, vicious killers on the face of the earth.”

Rumsfeld now says detainees could be released if officials determined there would be no charges against them, they posed no threat and they had no more useful intelligence to offer. Still, officials maintain that a number of the prisoners are dangerous, saying some have threatened to kill Americans or make more trouble if given the chance.

But the indefinite detention and lack of access to legal counsel for the Guantanamo detainees “raises the specter of an American gulag,” George Washington University law professor Jonathan Turley said.

Michael Ratner of the Center for Constitutional Rights deplores the fact that “some of these people have been there 15 months and not had any kind of a tribunal determine whether they were properly picked up.”

Others say any criticism should be tempered by the new reality of life in a post-Sept. 11 world.

“Legally, if you’re going to question the validity under the Constitution of what the government has done, what they have done is probably all right, but whether it’s socially and morally acceptable, certainly it’s uncomfortable,” former military prosecutor Jeff Ifrah said.

Countries that have said publicly they want their citizens home from Guantanamo include Russia, Saudi Arabia, Sweden, Britain and Pakistan.

Twelve Kuwaiti families issued a statement through a spokesman Tuesday calling on the U.S. government to put an end to “this legal limbo” for relatives held at Guantanamo Bay since January 2002.

Guantanamo Bay isn’t the only source of possible defendants for military commission trials.

Major terror suspects in U.S. custody who are held far from Guantanamo Bay at undisclosed locations around the world could be subject to the trials. So could accused Sept. 11 suspect Zacarias Moussaoui, if the government is unable to work out its problems in his federal court case over the use of classified information. And if President Bush expands the order he signed in November 2001, Iraqis alleged to have committed war crimes could face commissions.

Trials before military commissions are far different from those the public is used to seeing in civilian court.

The commissions require a two-thirds vote to convict a defendant, as opposed to a unanimous verdict by a 12-member jury. A death penalty case before a seven-member military commission requires a unanimous verdict. In non-death penalty cases, the commissions can have as few as three members. Every commission has at least one military lawyer who rules on admitting evidence and other such issues. Commission members are always military officers.

Copyright 2003 The Associated Press.