Military

DATE=March 27, 2002

TYPE=Dateline

NUMBER=7-36108

TITLE=Dateline: Military Tribunals

BYLINE=Carol Castiel

TELEPHONE=

DATELINE=Washington

EDITOR=Neal Lavon

CONTENT=

TAPE: CUT 1 BUSH ACT :16

"Now I want you to remember that we are at war. The United States of American is under attack. And at war, the president needs to have the capacity to protect the national security interests and the safety of the American people."

HOST: It has been more than four months since President Bush issued his controversial executive order establishing military tribunals to try non-Americans suspected of terrorist crimes. The Defense Department released detailed rules last week implementing the President's order. As Carol Castiel reports in this edition of Dateline, the regulations go a long way toward appeasing the Administration's critics, but for some of those critics, the jury is still out.

CC: The disagreements between detractors and advocates of military tribunals narrowed since the Defense Department issued a complex set of rules designed to govern the trials. In these rules, the Defense Department adopted some of the complaints from civil libertarians who felt that the president's original order did not strike a proper balance between fairness and security. One such critic is Timothy Lynch, Director of the Cato Institute's Project on Criminal Justice.

TAPE: CUT 2 TIMOTHY LYNCH ACT :31

"I think the administration was really caught off guard by the negative reception that they received when they proposed trial by military commission. And I think they had some very expansive ideas when they first advanced this proposal back in November but because of the firestorm that erupted, I think they've really backed off of what their original ambitions were. And they're going to reserve it for just some extraordinary type of cases where they have maybe either Osama Bin Laden himself or someone very, very high up in the Al Quaeda terrorist network."

CC: Groups like the Cato Institute and the American Civil Liberties Union still have reservations about the tribunals, but their primary objections regarding the right of due process have been addressed. For example, the administration originally permitted convictions based on a lesser legal standard than proof beyond a reasonable doubt, which is the standard required in American civil trials. The tribunals also sanctioned imposition of the death penalty with only a two-thirds majority of the tribunal's commissioners. However, the Department of Defense rules now say that convictions must adhere to the proof beyond a reasonable doubt standard and that death sentences can only be imposed by a unanimous vote. At a news conference last week, Secretary of Defense Donald Rumsfeld highlighted these and other provisions for military tribunals.

TAPE: CUT 3 RUMSFELD ACT :48

"The accused will enjoy a presumption of innocence; will not be required to testify or incriminate themselves at the trial. They will have the ability to discover information and to obtain witnesses and evidence needed for trial and be present at public trial. Cannot be tried for the same offense twice. Will be provided with military defense counsel at government expense, and will also be able to hire defense counsel of their choosing at their expense. Further, proceedings will be open, unless the presiding officer determines it's necessary to close the proceedings to protect classified or sensitive information, or for another reason; namely, the safety of the trial participants. After the trial, there will be an automatic post-trial process of appeal and review. Let there be no doubt, commissions will conduct trials that are fair and impartial."

CC: Based on Secretary Rumsfeld's description, the procedures for military tribunals will be similar in many respects to those governing and military courts martial and civil federal courts. But the military tribunals will permit hearsay, and any evidence that would be convincing to a reasonable person. And, regarding the appeals process, military tribunals will not permit review of convictions by a federal court. Rather, appeals will go to a military panel selected by the Secretary of Defense. It was the lack of an independent appeals process that drew sharp criticism from the Cato Institute's Timothy Lynch.

TAPE: CUT 4 LYNCH ACT :27

"The verdicts in these military commissions, I think, ought to be appealable to our civilian court system. Right now, even under the new regulations that have been issued, the defendant is not going to have access to our civilian court system. It will only go up to a military review board and I think that's a big problem because I think our civilian courts should be able to review these proceedings to see if constitutional and basic due process rights have been respected."

CC: But a former judge advocate, or chief military lawyer, disagrees. Retired Major General Mike Nardotti says history has shown that military panels can be just as impartial as civilian courts.

TAPE: CUT 5 NARDOTTI ACT :40

"The historical record in military commissions would belie any argument in that respect. During World War II when they conducted thousands of commissions and had United States military officers sitting in judgement of their former enemy both in the European theater, the Nazis, and the Japanese theater where there were incredible brutalities by the Japanese military against civilians and members of the military. You would have thought that the conviction rate in those commissions would have been close to one hundred percent if the emotions carried the day. That was not the case. The conviction rate was about eighty-five percent. So I think, objectively, it demonstrated that the officers who sat in judgement were able to do that objectively and were able to it with a degree of fairness and to follow the rules that were established."

CC: Major General Nardotti further believes that the appeals process is more than adequate. He argues that the very military officers who are entrusted with the lives of soldiers in combat are equally capable of sitting in fair judgement of those charged with war violations.

TAPE: CUT 6 NARDOTTI ACT :28

"And I think it should be offensive to the military officers who would sit on these panels, because on the one hand the nation entrusts these officers with the lives of our men and women in uniform in dangerous operational situations, but are we saying on the other hand that we would not trust them to sit in judgement of those who are charged with the violations of the laws of war? I disagree with that. My knowledge of the people who serve in uniform--my relationships with them and my long experience as a participant in courts martial tells me otherwise."

CC: Despite the Defense Department's liberalized rules for military tribunals, some human rights advocates and civil libertarians are still unhappy. They say that the U.S. criminal justice system could have tried suspected terrorists. But Mike Nardotti says the extenuating circumstances in the terrorist attacks warrant military tribunals, not civilian trials.

TAPE: NARDOTTI ACT :28

"The situation that we are dealing is different from the normal criminal justice processes. The only reason that the president has the authority to do this as part of his war-making authority is because we are in an armed conflict with an enemy outside the United States, in this case the organization Al Quaeda, classified under international law as unlawful combatants. And with that as a starting point, the president can exercise extraordinary powers. And, in a case like this, there are considerations that are not normally attended to the normal criminal justice processes."

CC: Secretary of Defense Donald Rumsfeld points out that the rules governing military tribunals will provide legal protections available under the American justice system; but at the same time, they will act to preserve security for the nation's citizens.

TAPE: RUMSFELD ACT 8 :30

"We are a nations of laws. We have been attacked by lawless terrorists. The manner in which we conduct trials under military commissions will speak volumes about our character as a nation, just as the manner in which we were attacked speaks volumes about the character of our adversaries. We have made every reasonable effort to establish a process that is just; one that protects both the rights of the defendant to a fair trial, but also protects the rights of the American people to their security."

CC: The planned military tribunals have been one of the most closely scrutinized parts of the US anti-terror effort. Even though the Defense Department released the long-awaited procedures that will govern the tribunals, questions still remain over who will be tried, and when and where the trials will take place. One thing is likely: the same vigorous public debate that helped shape the eventual rules of the tribunals, will probably influence the answers to these important questions as well. For Dateline, I'm Carol Castiel.