ARLINGTON, Va. — The major legwork in prepping for military tribunals that may result from the war on terrorism is done; now all that remains are smaller logistical steps — and, of course, identifying possible prisoners who might stand trial, officials said.
Pentagon lawyers released Friday the final list of 33 crimes, up from the originally drafted 31, to be used when the president gives the go ahead to prosecute members of the al-Qaida terrorist network and others detained in the war on terrorism.
In November 2001, President Bush issued a military order authorizing the use of military tribunals, called military commissions by the administration, to try non-U.S. citizens who committed, or harbored those who committed, terrorism.
The guidelines released Friday could be applied to try the roughly 650 prisoners at the U.S. naval base at Guantanamo Bay, Cuba, or those held in Afghanistan.
Maj. Brad Lowell, a spokesman at Central Command in Tampa, Fla., said the official designation has been changed from “detainee” to “persons under control,” though gave no reason for the change in wording.
U.S. officials have released some detainees without charging them because they no longer provided intelligence or posed a danger, Lowell said. However, new detainees were taken in recent operations.
While Bush’s order specifically names the al-Qaida network, some of the provisions in the 57-page document clearly could be applied to prosecute enemy prisoners of war taken in Iraq. Those provisions include definitions for “improper use of flag of truce,” and “improper use of protective emblems.”
“It doesn’t mean we couldn’t have a new order drafted to cover [the Iraq conflict],” a senior civilian defense official from the Pentagon’s general counsel office said.
“I think there’s good news and bad news,” said Eugene Fidell, president of the National Institute of Military Justice and a practicing Washington attorney specializing in military law.
There were initial concerns that the prosecutor and defense counsel would report to the same person, he said. “There are different chains of command … and they’ve made an effort to address that concern,” Fidell said.
That’s the good news.
“On the other hand, the [Pentagon’s office of] general counsel decides the pool of eligible defense counsel” and could make that pool quite small, thus limiting available lawyers for defendants, he said.
Also, the instructions specifically rule out credit for time served, which means none of the time in which the detainees have been held thus far, if the panel imposes a sentence, he said. Some have been held since January 2002.
Pentagon lawyers working the draft received tremendous input from outside sources, including other governments, non-governmental organizations, private groups and individuals. Their input contributed to some of the changes from the draft released in March, such as the addition of definitions for the two crimes of “torture” and “causing serous injury,” said a senior military defense official from the general counsel office. The officials spoke with reporters on the condition their names not be published.
Also, unlike the draft released in early March, the finalized document outlines the responsibilities of and the qualifications needed on the prosecution and defense sides of the tribunal.
The president, based on the recommendation by the appointing authority — currently the defense secretary — decides whether an individual should stand trial. Unlike criminal proceedings, a defendant cannot appeal a decision. However, every decision made by the commission will be scrutinized by a review panel.
That review panel could include the defense secretary, and must include a panelist with legal experience, an official said.
The Military Commission Instructions Nos. 1-8 are posted the Defense Department’s Web site at www.defenselink.mil and on the National Institute of Military Justice’s Web site at www.nimj.org.
