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A military trial of someone accused of terrorism would include lawyers, jurors and a judge, but similarities to a typical American courtroom would end there. Even supporters of the idea say it would mean fewer rights for the accused, a freer hand for the government and little or no oversight from other judges or the public. Civil liberties defenders say the military terror tribunal sketched by the White House is just shy of a Star Chamber — ultrasecret and omnipotent. “The government gets to decide first that you’re guilty, then it puts you through the process to affirm that you’re guilty,” said Morton H. Halperin, a senior fellow at the Council on Foreign Relations. “I don’t think constitutionally you can do that.” President Bush gave emergency approval for a military tribunal this week, should terrorism suspects be caught and charged in the wake of the Sept. 11 attacks. The White House says no American citizens would be brought before such a court. Osama bin Laden’s al-Qaida terror network is the target. “They don’t deserve the same guarantees and safeguards that we use for an American citizen,” Vice President Dick Cheney said Wednesday. “They will have a fair trial under the procedures of the military tribunal.” Attorney General John Ashcroft said that the assaults were acts of war, and that a military commission is the appropriate place to try terrorists captured in Afghanistan or elsewhere. Foreigners living in America also could go before the court, which could sit in the United States or abroad. “Foreign terrorists who commit war crimes against the United States in my judgment are not entitled to and do not deserve the protections of the American Constitution,” Ashcroft said Wednesday. Congress has not declared war, although the military is bombing in Afghanistan in hopes of destroying bin Laden’s network. The White House framework for a military tribunal is based on tribunals used by the United States during more traditional wars. Many details, however, are unresolved. “It leaves open more questions than it answers,” said lawyer Philip Allen Lacovara, a former counsel to the Watergate special prosecutor who has written and lectured on military courts worldwide. “What it essentially does is stake out the president’s willingness to use military tribunals.” The president himself would decide who came before a military court, and many of the particulars of a trial would be up to him and the defense secretary. For example, it is not clear whether the government would have to prove guilt beyond a reasonable doubt, the burden prosecutors must meet in an ordinary criminal court. Rules about what evidence can be used at trial would be looser than in a regular court. At the least, prosecutors would be able to use hearsay statements, statements, several lawyers said. The government also would likely be able to use material collected through searches or wiretaps that would be unconstitutional if used against an American citizen in a criminal court. The right to appeal a conviction or sentence would be curtailed or eliminated, unless the Supreme Court got involved, lawyers said. A military tribunal could have one judge and a panel of officers sitting as a jury, on the model of a traditional court-martial. It could have a panel of judges acting as both judge and jury. Judges probably would come from the existing military justice system, but could include civilian judges invited by Bush, Lacovara said. A terrorist trial would not be on television, but likely take place on a military base, under heavy security, and the public might not even know about the trial until it was over, lawyers said. The United States last used a military tribunal to try German saboteurs who sneaked ashore in New York and Florida in 1942. The trial was secret, and conviction and execution for six saboteurs was swift. The Supreme Court upheld the proceeding, but under terms that lawyers said might not protect the White House from a constitutional challenge now. Thomas Henriksen, a Hoover Institution historian who has researched war trials, said history is better served by keeping terrorist trials under the jurisdiction of the military. “You have to avoid the kangaroo court that would happen if you tried the case in a federal court,” he said. “You don’t want a situation where high-powered attorneys are clowning for the cameras. You also want a jury that is solid. In a military court out of the country, you get to set the rules and keep it sensible.” Copyright 2001 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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