Military

DATE=03/22/03

TYPE=INTERVIEW

NUMBER=3-100

TITLE=ERIC MULLER

BYLINE=TOM CROSBY

DATELINE=WASHINGTON

CONTENT

/// EDS: AVAILABLE IN DALET UNDER SOD/ENGLISH NEWS NOW INTERVIEWS IN THE FOLDER FOR TODAY OR YESTERDAY ///

INTRO: U-S Defense Secretary Donald Rumsfeld has offered more details on how military trial commissions hearing charges against al-Qaida and Taleban detainees will operate. Among other things...rules of evidence will be relaxed to allow hearsay evidence which is usually barred in civilian courts. University of North Carolina law professor Eric Muller tells News Now's Tom Crosby the Bush administration appears to have set up these commissions in such a way as to answer some critics who fear they will not operate fairly:

PROF. MULLER: I see the evidence of some significant compromise on the part of the administration in the way this is being framed. Back in mid-November, when this first came out, it sort of sounded like the government was planning on lining up a bunch of people and shooting them, basically. I mean, it really sounded like they were going to go with minimal process or maybe even almost none. And there was something of a reaction, both domestically and internationally, and now we see that the rules are going to have these things looking rather like civilian courts in the United States, although with some significant differences.

MR. CROSBY: One of the big similarities is that those who are being tried are presumed innocent until proven guilty.

PROF. MULLER: Right, we have the presumption of innocence. We have a burden of proof beyond a reasonable doubt. We have a right to counsel. We have a right to confront witnesses against the defendants, a right to cross-examine witnesses, many of the rights that we take for granted here in the United States in civilian courts.

MR. CROSBY: And in fact not only do they have a right to an attorney but they have a right to have both a military and a civilian attorney, if I read this correctly.

PROF. MULLER: Yes, as I read it, they have a right to a military lawyer provided at no expense, and they can replace that person with their own funds if they want to be represented by a civilian attorney.

MR. CROSBY: Now let's look at a negative on this. There is no right to appeal, if I understand this correctly.

PROF. MULLER: Well, actually, that's not quite right, Tom. There is a right to appeal, but there is no right to appeal outside the military. And that's what people are still screaming about. In the military justice system in the United States, there is a separate Code of Military Justice and a separate military court system, but ultimately the Federal courts have review power. That is to say, Federal judges have the authority to review convictions obtained in the military setting.

This, it seems, is going to have an appeal panel, but it will be an appeal panel made up of military officers, appointed by the President or by the Secretary of Defense, and then of course the ultimate appeal will be to George Bush himself. But there will be no independent eyes outside the executive branch looking at these convictions that are obtained. And I can see why that would be troubling to people. I think that the government might have been well advised to try to create some kind of a more independent reviewing body than what they ended up with.

MR. CROSBY: In point of fact you've alluded to something I had hoped to mention here, that being that the President himself has a great deal of leeway in all of these proceedings, doesn't he?

PROF. MULLER: He does in the sense that ultimately, as I read all of this, he can sort of do what he wants at the end of the day. If he is dissatisfied with the result that is obtained through this process, he, as I see it, seems to have the authority to order whatever he wants. Whether he will actually do that is another question, but he retains broad discretion over which people are actually brought to trial, what they are charged with, who the members of the reviewing panel and the tribunal of the first instance will be.

So, yes, the President and, indirectly, the Secretary of Defense do have significant control. And that's why I say that I think that the government might have been well advised to try to insert some kind of independent eyes in the reviewing process, to blunt the suggestion that this is a kangaroo court, the strings of which are being pulled by the President.

MR. CROSBY: Ultimately, though, doesn't the President have some say as to whether or not individuals will be tried and face the death penalty?

PROF. MULLER: That is true. That is always a prosecutorial decision. And of course the President in this context is really ultimately the chief prosecutor, so the President will have that decision as well. All of this, in some respects, seems to be advisory, in the sense that the President can set the judgment of all of this aside if he chooses to do so.

I think it's notable that one of the provisions that they settled on was the idea that these will be public proceedings. Because what that will do, among other things, is it will create significant domestic and international pressure on the President to follow the wishes of these tribunals and not set them aside except in cases of really extreme miscarriages of justice.

MR. CROSBY: And he is already starting to feel that international pressure, especially as concerns the possibility of death penalties being handed out.

PROF. MULLER: Sure. And in fact I think that that is part of the reason why, when they set the rule for how the decisions would be made, they settled on unanimity, a requirement that all of the tribunal judges be unanimous for the death penalty, whereas for other punishments two-thirds is sufficient.

(End of interview.)