02 May 2003
DOD Legal Officials Ready Rules for Future Military Commissions
(President Bush must name individuals for possible prosecution) (660) By Jacquelyn S. Porth Washington File Security Affairs Writer Washington -- A senior U.S. defense official says that legal instructions are now ready for trial of potential war criminals by U.S. military commissions if President Bush decides to name individuals to be considered for prosecution. "We are ready to go when the time is right," the official told reporters at the Pentagon on May 2. The civilian official, along with two military officials, provided background information on the intricacies of the military commission process on condition that they not be identified. He said the United States has historically used military commissions to deal with violations of the laws of war. For some time now, the official said, "we have been reviewing different cases" that might be suitable for prosecution by a military commission. While legal authorities have "some thoughts about who would be appropriate to bring before a military commission," he said, "no final decisions have been made yet." The commissions are designed to deal with foreign nationals and not U.S. citizens. The civilian official refused to speculate on the number of individuals who might go before a commission. One of the military officials who briefed said: "We don't have jurisdiction over anyone to try them ... until the president designates them as subject ... to his order." Decisions have also not yet been made on where commissions might be convened or the number of personnel that might be needed to staff them. Active duty, National Guard and Reservists could be called to serve on commissions if sufficient numbers of members are needed. The briefers handed out eight sets of instructions that define substantive crimes that might be appropriate for trial by commissions. Some of these crimes include using civilians to shield a military objective; torturing one or more people; using a white flag of truce to pretend to negotiate, surrender or end hostilities; and conducting terrorist acts. The officials said these instructions, which can be found at http://www.defenselink.mil/news/May2003/b05022003_bt297-03.html, were drafted after comment was solicited from inside and outside the U.S. government. They said other governments, non-governmental organizations, private groups and individuals provided useful comment. They declined to identify those who provided comment. The senior official expressed confidence that the nearly 60 pages of instructions will provide for "full and fair trials before military commissions." Asked about the relationship of these instructions to Iraqis who are currently being detained, the military official said the instructions were drawn up following an order by the president that predated "Operation Iraqi Freedom." However, he said they are based on the international laws of armed conflict and for that reason they might describe the same types of crimes that were prosecuted by the International Criminal Tribunal for the Former Yugoslavia, or relate to "some of the accusations you've been hearing on the news regarding Iraq." The senior defense official went on to explain that if international terrorists were taken into custody in Iraq, "it is possible that they could also be subject to this process." The instructions were originally prepared, he said, as part of the prosecution of the global war against terrorism, not the war in Iraq. While President Bush's military order was not drafted with Iraq in mind, he said, it did refer prominently to al-Qaeda and membership in that terrorist organization. A news release issued by the Defense Department May 1 said the eight military commission instructions represent another step toward "being prepared to conduct full and fair military commissions." One of the briefing officials reminded reporters that prosecutors must prove guilt beyond a reasonable doubt in any cases brought before the military commissions. He also said decisions will be reviewed automatically by a panel designated by the secretary of defense, by the secretary himself, and the president, unless he chooses to delegate his reviewing authority. (The Washington File is a product of the Office of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
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