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RESPONSE TO TERROR | MILITARY TRIBUNALS

None Jailed in U.S. Face Tribunals

November 30, 2001|DAVID G. SAVAGE and PAUL RICHTER | TIMES STAFF WRITERS

WASHINGTON — Military tribunals would be used overseas to try "war criminals," not the hundreds of individuals detained in the United States on suspicion of terrorist activity, Bush administration officials said Thursday.

And they expect that the trials would be open and follow most of the rules of procedural fairness that are used for trying U.S. military personnel.

"They won't be held in the United States," said one top official who is working on the rules for military tribunals. "The main purpose is for trying the people who we catch in battlefield operations, people who are enemy belligerents and can be tried as war criminals. We're not talking about people who are picked up for visa violations."

Two weeks ago, President Bush set off alarms in some quarters by issuing a broadly worded order that authorized the use of military tribunals in the "war against terrorism." The order raised the specter of secret trials and hidden evidence.

FOR THE RECORD
Los Angeles Times Tuesday December 4, 2001 Home Edition Part A Part A Page 2 A2 Desk 2 inches; 41 words Type of Material: Correction
Military tribunals--In a Section A story Friday on military tribunals, the teaching affiliation of Lt. Col. H. Wayne Elliott was misstated. He taught military law at the Army Judge Advocate General's School, which is at the University of Virginia but is not affiliated with the university.

The White House has continued to say that the president wants the option of trying a major terrorist in a special military court, even if the suspect is arrested here. But lawyers who drafted the order say they never intended to use military tribunals as a substitute for the criminal courts.

President Bush stressed the same point Thursday, saying that "foreign enemies" who "commit mass murder" against Americans are more like war criminals than ordinary suspects. "Those who make war on America" should be tried by the military, not by ordinary jurors in civilian courts, he said.

The use of military tribunals in wartime has always carried the tag of victor's justice. The army that wins the battles and captures its enemies sets the rules for trying the defeated.

After Japan's defeat in 1945, for example, Gen. Douglas MacArthur tried hundreds of Japanese officers for war crimes.

At the Pentagon, a team of Army lawyers has been poring over the history of those trials. The team has been ordered to draft rules for what the Pentagon expects would be a series of swift but essentially fair trials before U.S. Army officers.

"This is the right way to try these cases," said retired Lt. Col. H. Wayne Elliott, who is considered one of the nation's foremost experts on military tribunals. "This is not new. There's a lot of history and precedent behind it, although we have lost sight of it over the last 50 years."

Lawyers at the Pentagon and the Justice Department, speaking on condition of anonymity, say they are grappling with the wish to be fair and the desire to mete out harsh punishment to mass murderers.

Because the world will be watching with some skepticism, they want to hold trials that would be seen as fundamentally fair. On the other hand, they want to punish the guilty, not give them a forum for condemning America.

The Uniform Code of Military Justice, which sets the rules for courts martial of service personnel, serves as "a starting point," said one military lawyer.

Under these rules, a serviceman can be convicted by a two-thirds vote of the officers who hear his case. A death penalty requires a unanimous verdict. These basic rules could carry over easily to the proposed military tribunals, lawyers say.

On the other hand, U.S. soldiers are entitled to the protections of the U.S. Constitution, which could prove cumbersome for trying foreigners accused of terrorism.

"They won't include all the procedural niceties" that are standard in an American court, said Elliott, who teaches military law at the University of Virginia. "For example, when you are interrogating a war criminal, you don't read him his Miranda rights and say, 'You have a right to remain silent.' You force them to talk if you can."

It also makes no sense to apply the "exclusionary rule" to such trials, said another lawyer who is working on the rules. That rule lets defendants in U.S. courts "exclude" from their trials evidence that was collected improperly.

The Supreme Court adopted this rule nationwide in 1961 as a way to force police to abide by the Constitution. For example, if a police officer stops a pedestrian for no reason, forcibly searches him and discovers illegal drugs, a judge would rule this an "unreasonable search," a violation of the 4th Amendment, and throw out the evidence.

"Those rules just don't fit" in a military trial of a foreign terrorist, Elliott said. If U.S. authorities obtain evidence against such a person, it would almost surely be used in a trial, regardless of how it was obtained, he said. "If we used torture to get a confession, you wouldn't allow that," Elliott said, but most other rules for obtaining evidence would be relaxed.

Administration officials say they have not decided where the tribunals would be held, only that trials of foreign terrorists would most likely be conducted outside the United States. President Bush and other officials have said that bringing foreign terrorists to the United States for trial would pose serious security risks.

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