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After nearly 18 months of deliberation, Pentagon officials are laying the final groundwork to hold military commissions for suspected al Qaeda members captured on the battlefield in Afghanistan and elsewhere. No detainees have yet been charged to face trial before a military commission as authorized by President George W. Bush in the wake of the Sept. 11 terrorist attacks, but behind the scenes, Department of Defense officials are mobilizing legal teams to prosecute and defend the cases. In addition, the president’s 2003 supplemental budget request includes funds for the construction of facilities to house military commissions at Guantanamo Bay. “We are ready to go now, if the president makes a decision,” says one senior Defense Department official. Yet even as work continues on the commissions, many questions remain about how they will be used and what protections defendants will receive. According to several lawyers with knowledge of the planning for military commissions, the Defense Department is strongly considering Army Col. Frederic Borch III for chief prosecutor and Air Force Col. Willie Gunn for chief defense counsel. Borch, who is 48, currently serves as deputy chairman of the international law department at the Naval War College in Newport, R.I. He has held a wide range of posts at the Pentagon, at Army installations, and in academia. Gunn, who is 44, most recently served as executive assistant to the Air Force judge advocate general at the Pentagon. From 1999 to 2001, Gunn supervised all Air Force defense counsel for the central United States. Active duty and reserve judge advocates with all branches of the military have been identified to serve as assistant prosecutors and defense counsel. The heads of the prosecution and defense teams will report to separate individuals in the Defense Department general counsel’s office. According to DOD regulations, defendants brought before military commissions are entitled to free military counsel and can request civilian defense counsel if it can be arranged at no expense to the government. Civilian lawyers must be U.S. citizens and obtain high-level security clearances. Private defense lawyers say they are concerned that the Pentagon will bar them from contacting detainees or traveling to Guantanamo Bay. “The Pentagon has made it virtually impossible for any civilian attorney to take one of these cases,” says Donald Rehkopf, co-chair of the military law committee of the National Association of Criminal Defense Lawyers. “Any of us would take a case. It’s very important to the system,” says George Washington University Law Professor Jonathan Turley, who represented acquitted Navy officer Daniel King on espionage charges. “The problem is, the rules say defendants are entitled to civilian counsel, but the administration has barred attorneys’ access to the detainees.” President Bush’s Nov. 13, 2001, order authorizes tribunals for noncitizens who are members of al Qaeda, have engaged in international terrorism, or knowingly harbored terrorists. In March 2002, the Defense Department released more detailed instructions establishing basic commission procedures and evidentiary rules. In February 2003, the department issued a preliminary list of war crimes that may be tried by military commissions. Despite ongoing preparations to hold commissions, it is unclear just when the administration is planning to put them to use and for which individuals. Borch and Gunn declined comment. D.C. lawyer Eugene Fidell, president of the National Institute for Military Justice, says the Pentagon may need to develop more precise instructions for the commissions prior to their use. “If you look at the Manual for Courts-Martial, the book is about two inches thick,” Fidell says. “I would find it surprising if the only things people had for guidance were the presidential order, the Rumsfeld order, and the latest crimes and elements.” To create the commissions themselves, Defense Secretary Donald Rumsfeld — or someone designated by Rumsfeld — must appoint active duty, reserve, or retired military officers to serve as commission members. Each commission will include three to seven members, including at least one judge advocate to preside over hearings. According to a Defense Department official, the general counsel’s office has compiled lists of potential commission members based on recommendations from each branch of the armed services. Commission members are expected to be field officers with experience in combat or the law of war and must have top secret security clearances. The lawyers likely to be tapped for chief prosecutor and chief defense counsel are both highly regarded career judge advocates. Prior to becoming an instructor at the Naval War College, Borch served as the senior legal adviser at Army Signal Center at Fort Gordon in Georgia. From 1994 to 1998, he worked in the criminal law section of the Army Judge Advocate General’s office. While in that role, he supervised the high-profile prosecutions related to sexual misconduct at Aberdeen Proving Ground in Maryland. From 1990 to 1993, Borch taught criminal law at the Judge Advocate General’s School in Charlottesville, Va. He received his law degree from the University of North Carolina and has advanced law degrees in military law from the Judge Advocate General’s School and in international law from the University of Brussels in Belgium. Gunn, eyed for the lead defense counsel post, previously served as the chief legal adviser for Pope Air Force Base in North Carolina, taught environmental law at the Judge Advocate General’s School, and worked as a trial lawyer representing the Army in civil litigation. In 1990, Gunn was selected as a White House fellow. He began his career as the military equivalent to a public defender, representing Air Force members in criminal matters. Gunn earned his J.D. at Harvard Law School and an advanced degree in environmental law from the Judge Advocate General’s School. As the military commissions have taken shape over the past year, much of the early controversy surrounding the president’s order has quieted. The March 2002 rules establish basic protections for defendants that were uncertain previously. For instance, defendants will be presumed innocent until proven guilty and will have the right not to testify at their trial. Hearings will presumptively be open to the public, convictions will require proof beyond a reasonable doubt, and death sentences will require a unanimous commission vote. Still, concerns remain about the impartiality of a process so closely controlled by the Defense Department. “The policies do have some basic due process, but it’s not clear to me that the commissions really have the independence that would make them credible in the eyes of the public and in the international community,” says John Cooke, a retired brigadier general and former chief judge of the Army Court of Appeals. Under the rules, evidence can be admitted if it “would have probative value to a reasonable person” — a much lower standard than in ordinary court proceedings. There are no restrictions barring the admission of hearsay evidence or evidence that may have passed through many hands on the battlefield. In addition, many military law experts are concerned by a lack of independent review. According to the Pentagon order, a three-member panel will review trial records and recommend whether the commission’s findings should be adopted by the secretary of defense and the president, at which point the decision becomes final. Ruth Wedgwood, a professor of international law at Johns Hopkins University, says commission procedures were carefully tailored to allow the government to address security concerns, protect classified information, and introduce evidence collected on the battlefield that might not meet federal rules of admissibility. Turley, the GW law professor, calls the order “misleading,” adding that the regulations give the appearance of being narrowly crafted while essentially guaranteeing convictions. “The government has the burden in any system of law to authenticate evidence before it is introduced. Under the tribunal rules, a prosecutor can theoretically introduce any piece of evidence that she argues is relevant to the charges,” Turley says. “The standard of ‘beyond a reasonable doubt’ means nothing if the government can introduce any evidence it can produce or procure.”

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