UPI Pentagon Correspondent/International Desk
Friday 02 May 2003
WASHINGTON, May 2 (UPI) -- The Pentagon plans to impose a permanent gag order on attorneys who defend alleged terrorists or "enemy combatants" before any U.S. military tribunals, senior defense officials said Friday. All statements and information about the trials will be made through the Pentagon spokesman's office.
"The goal is a full and fair trial by commission, not to win popular support," a senior military official said.
The Pentagon Friday issued eight documents outlining the procedures for the controversial military commissions, popularly known as tribunals. The issuance of the instructions was the last procedural step required before commissions could be held.
"Pretty much we are ready to go when the time is right," a senior defense official said.
The commissions are intended for people believed to be members of al-Qaida or other terrorist organizations and believed to be guilty of any one of nearly 30 crimes, from using human shields on the battle field, to torture and murder. The commissions could also apply to people alleged to have harbored terrorists.
Senior Pentagon officials told reporters at a briefing Friday an undisclosed number of the hundreds of detainees being held at a facility in Guantanamo Bay, Cuba, are being considered for trial by commission. The president will select the prisoners to be prosecuted.
"We have been reviewing difference cased for some time. We have some thoughts about who would be appropriate," a senior defense official said.
The commissions, first announced in November 2001, have come under sharp criticism from human rights and legal organizations, which have argued variously that they are unconstitutional, illegal under international law and a dangerous precedent for U.S. troops who might be captured and tried in similar forums in other countries. A chief concern is the lack of an independent appeal.
Convictions are to be automatically referred to another military review board but at no time do defendants have the right to a trial in a court independent of the Defense Department.
The procedure will be tightly controlled. Under the military commission rules, the attorneys for both the government and the defendants will need the express permission of the Pentagon's general counsel or the defense secretary before they "communicate with news media."
"It is probable those contacts would be authorized," a senior defense official said.
The ban on talking to the media will be in effect after the proceeding as well. However, to assure critics the commissions are being conducted fairly, the officials said they will open them as much as possible to the news media.
Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, told UPI the gag rule is dangerous because it sets the stage for government abuse. Anything legally questionable that happens behind closed doors would never come to light.
"What bothers me about this is it limits justice. If you do not have press and public scrutiny, there is every incentive for military courts not to give basic rights to the person accused," Goldman said.
Defense officials said the military commission instructions issued Friday were adjusted from a draft version to make it clear that the burden of the proof of guilt is on the government rather than on the defendant, and they have added "torture" and "causing serious injury" to the list of 24 crimes that can be tried in the commission outlined in the February draft.
The military commissions were created to "capitalize on the flexibility needed for the increased need to protect intelligence" that would not be provided by standard courts martial or trials in civilian courts, the military official said. The instructions also give the government more leeway in the laws of gathering evidence.
"It's tough to get a (search) warrant for a cave," the military official said.
The proceedings could be held anywhere, including Iraq, the officials said. They would not say whether any of the defendants are likely to be Iraqi. The United States has captured more than a dozen regime officials and has been trying to build a case linking the Saddam Hussein regime with al-Qaida and international terrorism.
None of the nearly 600 prisoners collected from the war in Afghanistan has yet been designated by the Bush administration to face the military commission.
One of the crimes in the document is the use of human shields, which military officials have said Iraqi forces were guilty of during the just-completed war.
All of the crimes listed in the document have been derived from more than 100 existing international laws that concern the conduct of war and combat, a Pentagon official said in February.
The document lists 26 primary charges, from "willful killing of protected persons" and attacking civilians and misusing the white "surrender" flag, to mutilation, taking hostages, degrading a dead body, rape and hijacking.
It also lists "aiding and abetting" and commanding or supervising the above crimes as charges that could be brought.
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