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Homeland Security

Washington File

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
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, 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
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
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:

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