News-Info-Alerts

To: ALL

From: Andi Wolos & Bob Necci

(POW-MIA InterNetwork)

Re: Questions of Status

Date: November 20, 2001

"Legal Experts Question Sept. 11 Military Courts
By Sue Pleming

WASHINGTON (Reuters) - The use of special military courts to try foreigners accused in the Sept. 11 attacks may be a ''quick fix'' in bringing suspects to trial but will deny defendants many of the protections of U.S. criminal courts, said legal experts Wednesday.

In a legal tool last used in World War Two, President Bush signed an executive order Tuesday declaring that foreigners arrested on terrorism charges could be tried in any place or time by military courts, which are often secret.

``What I fear is that the rest of the world will look at it and say these military courts are not courts of justice but courts of vengeance,'' said Irwin Schwartz, president of the National Association of Criminal Defense Lawyers.

``The trials will be a formality preceding execution,'' he added. Penalties under the order include death, which is opposed by many key U.S. allies.

Vice President Dick Cheney defended the president's order, telling a Chamber of Commerce meeting that foreigners who came into the United States illegally with the aim of killing thousands, such as on Sept. 11, were not lawful combatants.

``They don't deserve to be treated as a prisoner of war and they do not deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process,'' said Cheney.

He said those tried in military courts would be given a fair trial, adding that there was legal precedence such as in World War Two when German saboteurs were tried by a military commission and in the case of those accused of assassinating Abraham Lincoln.

The order specified that anyone detained would be ``treated humanely without any adverse distinction based on race, color, religion, gender, birth, wealth or any similar criteria, and afforded adequate food, water, shelter, clothing and medical treatment.''

Senate Majority Leader Tom Daschle voiced ``constitutional concerns'' over Bush's order and said he wanted to take a look at all of the legal implications before judging its merits.

``I have some concerns for the constitutional protections that we have always afforded everybody,'' he told reporters.

PRACTICAL SOLUTION

Legal experts are divided over the use of a military court but all agree that they will lead to fewer protections for defendants tried in those tribunals.

Paul Williams, professor of law and international relations at American University, said a military court was probably the most practical solution for trying those behind the Sept. 11 attacks in which hijacked planes were rammed into landmark buildings, killing more than 4,500 people.

``It's a quick fix. Military tribunals are not the highest level of fairness or due process but I believe they will have sufficient due process,'' said Williams. ``What President Bush is trying to do is avoid legal gridlock.''

Yale law professor Ruth Wedgwood, who is currently at the Johns Hopkins School of Advanced International Studies in Washington, said one advantage of a military court would be to prevent key intelligence from being given to the enemy.

``You are not disclosing to the adversary what you know,'' she said, adding this was particularly important when dealing with such a powerful enemy as Osama bin Laden and his al Qaeda network, the chief suspects for the Sept. 11 attacks.

Outlining how the military courts would work, Eugene Fidell, president of the National Institute of Military Justice, said they would consist of a panel chosen by Defense Secretary Donald Rumsfeld, probably with White House approval.

``There is less in the cup,'' said Fidell, when describing the legal protections offered to defendants.

In a criminal court, the burden of proof must be beyond a reasonable doubt while Bush's executive order does not specify this, he said. In civil society, a jury's verdict must be unanimous, opposed to the two-thirds required by the military panel in Bush's order.

FEWER PROTECTIONS

In addition, the usual strict rules of evidence, including the exclusion of here-say, would not apply and evidence could be submitted if it was shown to have ``probative value to a reasonable person.''

There is also no provision for appeals and the only review may be by the president or the defense secretary.

``It is certain that these defendants will try to get into the federal district courts and how far they get remains to be seen,'' predicted Fidell.

Schwartz pointed out that previous terrorism trials, such as those involving people accused of bombing U.S. embassies in Africa, were held in New York and the accused were tried and convicted by civilian juries.

Several legal experts said an international court such as those used for war crimes committed in Rwanda and former Yugoslavia could be the ideal legal tool to deal with Sept. 11 cases but others said it would take too long to set up and that foreign judges could be subject to pressures and intimidation.

But Schwartz disagreed: ``It is so much more credible and advances the rule of law so much more to have an international court,'' he said. "