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Legal advisers to the Pentagon say they hoped the adoption of key civilian trial protections would mollify critics of President George W. Bush’s Nov. 13 order creating military tribunals. Legal concepts such as proof beyond a reasonable doubt, double jeopardy and the presumption of innocence were incorporated into rules unveiled March 21 by U.S. Secretary of Defense Donald Rumsfeld. But while some in Congress expressed satisfaction with the rules, civil rights lawyers have found much to criticize. Specifically, they are attacking the structure of the tribunal proceedings, including the use of secret evidence and an all-military appeals process. “The appellate structure is problematic,” says Timothy Edgar, legislative counsel to the American Civil Liberties Union (ACLU). “There is no appeal outside the military system. There will be no review by an independent body.” A legal advisor to Rumsfeld who asked for anonymity says, “The only point that is arguable is the appellate procedure.” Edgar and others are more critical of the possibility that military defense counsel might be forced to keep some information from their client and civilian co-counsel, should the government deem it secret. “Your client is in the best position to determine whether evidence is false,” says Jonathan Turley, a professor at George Washington University Law School and a national security law expert. He says the ability to restrict such communication would provide prosecutors with an unfair advantage when they sought to introduce hearsay evidence, which is allowed by the rules. In that context, he says, the tribunal “effectively cuts off the best person to disprove this information.” The Pentagon says that no tribunals are scheduled for the 500 or so detainees being held in Afghanistan and Cuba. BENDING BACK Sen. Patrick Leahy, D-Vt., chairman of the U.S. Senate Judiciary Committee, says he was encouraged by the new guidelines. “The judiciary committee’s hearings on this issue helped Congress, the public and the administration to understand these issues,” he says. In his military order, President Bush allowed for the convening of trials both on U.S. soil and abroad, a two-thirds vote for execution, a final review by the defense secretary or himself and no appeals. Three bills in Congress seek to guarantee the right of habeas corpus, that tribunals would be held outside the United States, that they be conducted under the Uniform Code of Military Justice (UCMJ), and then only when Congress has certified that a trial in U.S. District Court would compromise intelligence sources or national security. The final rules adopt much of the UCMJ and civilian trial structure. They provide for defense discovery of prosecution evidence and the availability of exculpatory evidence. Tribunals will mostly be open to the press and public, though the presiding officer is given wide latitude to close them. One key concession to civil libertarians is the requirement of a unanimous seven-member jury to impose the death penalty. But on other points, the final rules hold fast to the more severe tone of the Nov. 13 order. These include an evidentiary standard allowing evidence that is of “probative value to a reasonable person,” which legal experts agree opens the door to the use of hearsay. The rules also allow for: � testimony from prior trials; � sworn or unsworn written statements; � witness testimony by telephone and the use of pseudonyms to protect their identities; � conviction by two-thirds of a jury; and � the selection of all commission members and the presiding officer by the secretary of defense or his designate. The commission must consist of U.S. military officers. Citing the Geneva Convention, the ACLU has attacked the tribunals, saying prisoners of war must be sentenced under a system of justice similar to that available to the soldiers of the detaining power. Ruth Wedgwood, a Yale Law School professor and adviser to the Pentagon on the guidelines, counters that the Bush administration has not conceded full POW status for the detainees, and that tribunals are a form of justice that has been applied to U.S. soldiers. “Commissions are a familiar modality for war crimes,” she says. “Most war crime cases have been tried by military tribunal.” Turley and others allege a stacking of the deck in the tribunal rules. “The main difference between the federal and tribunal rules are those areas that will help secure convictions rather than secrets,” he says. The evidence standard opens the door to hearsay and physical evidence obtained by military forces in Afghanistan, he says, preventing any chain-of-custody challenges. Edgar says that defense efforts will be complicated by the court’s ability to keep some evidence secret from the accused or his civilian lawyer. Civilian lawyers must be cleared before handling secret evidence, and this “does not guarantee that person’s presence at closed Commission proceedings,” the rules say. The accused is also excluded from closed proceedings, but the military defense lawyer is not. “It makes it impossible for the defense lawyer to do his job,” Edgar says. “If you have information that the defense lawyer can’t tell his client, how is the lawyer supposed to be able to talk to his client to find out if the evidence is viable?” He added, “It’s better to have the lawyer know the evidence than to have no one know it, but it’s still not the right to hear the evidence against you.” The rules create an office of chief prosecutor and say that each prosecutor must be a judge advocate in the military or special trial counsel from the Justice Department. They create an office of chief defense counsel but allow defendants to replace an assigned military lawyer with another qualified judge advocate or hire a civilian defense counsel. APPELLATE STRUCTURE The biggest change from President Bush’s Nov. 13 order is the creation of an appellate process requiring the secretary of defense to appoint three military officers to review tribunal rulings. The panel may approve and forward a ruling to the secretary or send them back to the tribunal’s appointing authority for further action. At least one member of the commission must be a judge, and civilian legal experts may be appointed through a temporary military appointment. The rules restrict the panel to reviewing issues of fact and law in accordance with the tribunal rules only, not federal law or the Constitution. Foreign politicians have criticized the availability of the death penalty in tribunals. Eugene R. Fidell, a Washington, D.C., lawyer and president of the National Institute of Military Justice, says the appellate structure may create another obstacle to international cooperation. “The concern is whether command review deprives the trial forum of the status of tribunal,” says Fidell, referring to the ability of the defense secretary or president to alter any finding short of a not guilty verdict. “To the extent that European countries might be called upon to extradite people, this kind of appellate structure could be a further impediment,” Fidell says. Related Chart: Issues and Outcomes

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