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Homeland Security

15 August 2003

U.S. Does Not Intend to Hold Terrorist Suspects Longer Than Necessary

Military lawyers are committed to fair trial process

By Jacqui Porth
Washington File Security Affairs Writer

Washington -- The Pentagon's top legal counsel says the United States does not intend to hold terrorist suspects who are now in custody any longer than necessary.

William Haynes, general counsel for the Department of Defense, told an audience of legal and academic experts that President Bush has insisted that the legal process designed to prosecute individuals suspected of terrorist activity "must result in a full and fair trial, and that is what we will do."

Speaking at the American Enterprise Institute (AEI) August 8, Haynes said the military commissions that may prosecute some of these non-U.S. citizens will operate openly. Anyone with Internet access can download and review the procedures to be used in the hearings, he said, and the hearings will be open to the public to the extent that is possible.

He said the six individuals determined by President Bush to be eligible for trial by military commissions can be assured that free and competent legal counsel will be provided, that all are presumed innocent until proven guilty, and that they will have access to all evidence needed by the defense lawyers regardless of its security classification.

Besides those who may face military commissions, there are suspects who are being prosecuted through the civil court system. Potential prosecutions have prompted considerable legal debate in the United States about how to strike the appropriate balance between national security concerns and civil liberties.

Melanie Kirkpatrick of the Wall Street Journal told the AEI audience that President Bush is not the first to grapple with such vexing issues -- Presidents George Washington, Abraham Lincoln and Franklin Delano Roosevelt did as well.

Michael Chertoff of the U.S. Court of Appeals for the Third Circuit said he believes both civil and military courts, depending on the circumstances of a case, should try terrorist suspects. He insisted that individuals who are tried by a military commission will receive a fair trial. He also said foreign policy issues can come into play in a military court, as in the current case in which some British citizens are being held at a U.S. Navy base in Guantanamo Bay, Cuba.

Deputy Secretary of State Richard Armitage was asked during his recent trip to the Pacific about an Australian citizen being held in Guantanamo. He said David Hicks "will get a fair trail, he will get the benefit of counsel ... and, he will not suffer the death penalty."

Haynes said military tribunals are an "entirely appropriate option" given that "we are in a state of armed conflict." The enemy combatants in this war are unlike any other, he said, because rather than being "foot soldiers" who answer to a nation, they are, instead, motivated by a hatred of America, its citizens and their way of life.

The current war is asymmetric, Haynes said, and the terrorists have global reach and "operate with deceit, treachery and stealth," preferring to target civilians and non-military targets. Terrorists are often trained and equipped "in lawless parts of the world," he noted.

Haynes said al-Qaida operatives understand the U.S. legal system very well. He said their training manuals teach how to exploit the system in a way that seeks to force disclosure of sensitive intelligence.

In the past, Haynes said, criminal activity associated with wars has been prosecuted after the wars were over, when the need to protect intelligence information was less critical. But today, he said, prosecution must occur even as the battle against terrorism continues and while the need for actionable intelligence remains.

Haynes suggested that al-Qaida may try to exploit the civil court system in an effort to force the U.S. government "to chose between protecting the nation's security and prosecuting members of the organization responsible for one of the worst attacks on our nation's soil." It is important that the United States not allow them to succeed, he added.

Military commissions provide for the protection of intelligence information, he said, offering the president viable alternatives in prosecuting the war on terrorism and in dealing "with an untraditional foe."

Haynes said there are precedents for using military commissions, noting that they were used during and after World War II and even before the United States was founded. International military tribunals were also used in Nuremberg and Tokyo, he said.

The State Department's former director of policy and planning, Morton Halperin, told the gathering that he agreed the United States needs options in dealing with terrorist suspects, but he said procedural rules must be followed. He urged the administration to seek congressional authorization for the military tribunals and for procedures to hold enemy combatants, adding that he believes Congress would authorize the administration's request.

If the United States must hold enemy combatants, Halperin said, it should be done according to a statute enacted by Congress. While agreeing that the government should have the right to hold indefinitely any al-Qaida member who travels to the United States, he maintained that there are no existing relevant statutes to make such detentions lawful.

He also questioned why some detainees are not being allowed to talk to their defense counsels. "[I]t is very difficult to understand how a lawyer can properly represent his client's interests when he's not allowed to talk, (and) doesn't know what his client's position is." Halperin said.

Responding to a BBC reporter's question regarding access to counsel, Haynes noted that there has been no decision yet to proceed to military tribunal trial with any individual, even though the president has designated six people as potentially subject to that process.

Haynes said that Defense Secretary Donald Rumsfeld has ordered that full and fair trials be held, and military officers, acting as defense counsels, "will do a very good job in representing the interests of their clients."

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site:

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