Text 1930, 161 rader
Skriven 2006-08-02 23:05:00 av ROSS SAUER (1:123/140)
Ärende: George W. Mussolini
===========================
Notice the part below, "...would also allow the secretary of defense to 
add crimes at will to those under the military court's jurisdiction."

Add crimes at will.
Hello, Benito!

White House Proposal Would Expand Authority of Military Courts

By R. Jeffrey Smith

Washington Post Staff Writer

Wednesday, August 2, 2006; A04

A draft Bush administration plan for special military courts seeks to 
expand the reach and authority of such "commissions" to include trials, 
for the first time, of people who are not members of al-Qaeda or the 
Taliban and are not directly involved in acts of international 
terrorism, according to officials familiar with the proposal.

The plan, which would replace a military trial system ruled illegal by 
the Supreme Court in June, would also allow the secretary of defense to 
add crimes at will to those under the military court's jurisdiction. The 
two provisions would be likely to put more individuals than previously 
expected before military juries, officials and independent experts said.

The draft proposed legislation, set to be discussed at two Senate 
hearings today, is controversial inside and outside the administration 
because defendants would be denied many protections guaranteed by the 
civilian and traditional military criminal justice systems.

Under the proposed procedures, defendants would lack rights to confront 
accusers, exclude hearsay accusations, or bar evidence obtained through 
rough or coercive interrogations. They would not be guaranteed a public 
or speedy trial and would lack the right to choose their military 
counsel, who in turn would not be guaranteed equal access to evidence 
held by prosecutors.

Detainees would also not be guaranteed the right to be present at their 
own trials, if their absence is deemed necessary to protect national 
security or individuals.

An early draft of the new measure prepared by civilian political 
appointees and leaked to the media last week has been modified in 
response to criticism from uniformed military lawyers. But the 
provisions allowing a future expansion of the courts to cover new crimes 
and more prisoners were retained, according to government officials 
familiar with the deliberations.

The military lawyers received the draft after the rest of the government 
had agreed on it. They have argued in recent days for retaining some 
routine protections for defendants that the political appointees sought 
to jettison, an administration official said.

They objected in particular to the provision allowing defendants to be 
tried in absentia, said the official, who spoke on the condition of 
anonymity because he was not authorized to describe the deliberations. 
Another source in contact with top military lawyers said, "Their initial 
impression is that the draft was unacceptable and sloppy." The source 
added that "it did not have enough due-process rights" and could further 
tarnish America's image.

The military lawyers nonetheless supported extending the jurisdiction of 
the commissions to cover those accused of joining or associating with 
terrorist groups engaged in anti-U.S. hostilities, and of committing or 
aiding hostile acts by such groups, whether or not they are part of al-
Qaeda, two U.S. officials said.

That language gives the commissions broader reach than anticipated in a 
November 2001 executive order from President Bush that focused only on 
members of al-Qaeda, those who commit international terrorist acts and 
those who harbor such individuals.

Some independent experts say the new procedures diverge inappropriately 
from existing criminal procedures and provide no more protections than 
the ones struck down by the Supreme Court as inadequate. John D. Hutson, 
the Navy's top uniformed lawyer from 1997 to 2000, said the rules would 
evidently allow the government to tell a prisoner: "We know you're 
guilty. We can't tell you why, but there's a guy, we can't tell you who, 
who told us something. We can't tell you what, but you're guilty."

Bruce Fein, an associate deputy attorney general during the Reagan 
administration, said after reviewing the leaked draft that "the theme of 
the government seems to be 'They are guilty anyway, and therefore due 
process can be slighted.' " With these procedures, Fein said, "there is 
a real danger of getting a wrong verdict" that would let a lower-echelon 
detainee "rot for 30 years" at Guantanamo Bay because of evidence 
contrived by personal enemies.

But Kris Kobach, a senior Justice Department lawyer in Bush's first term 
who now teaches at the University of Missouri at Kansas City, said he 
believes that the draft strikes an appropriate balance between "a 
fundamentally fair trial" and "the ability to protect the effectiveness 
of U.S. military and intelligence assets."

Administration officials have said that the exceptional trial procedures 
are warranted because the fight against terrorism requires heavy 
reliance on classified information or on evidence obtained from a 
defendant's collaborators, which cannot be shared with the accused. The 
draft legislation cites the goal of ensuring fair treatment without 
unduly diverting military personnel from wartime assignments to present 
evidence in trials.

The provisions are closely modeled on earlier plans for military 
commissions, which the Supreme Court ruled illegal two months ago in a 
case brought by Salim Ahmed Hamdan, a Yemeni imprisoned in the U.S. 
military prison at Guantanamo Bay, Cuba. "It is not evident why the 
danger posed by international terrorism, considerable though it is, 
should require, in the case of Hamdan, any variance from the courts-
martial rules," the court's majority decision held.

No one at Guantanamo has been tried to date, though some prisoners have 
been there since early 2002.

John Yoo, a former Justice Department lawyer who helped draft the 
earlier plan, said Bush administration officials essentially "took DOD 
regulations" for the trials "and turned them into a statute for Congress 
to pass." He said the drafters were obviously "trying to return the law 
to where it was before Hamdan " by writing language into the draft that 
challenges key aspects of the court's decision.

"Basically, this is trying to overrule the Hamdan case," said Neal K. 
Katyal, a Georgetown University law professor who was Hamdan's lead 
attorney.

The plan calls for commissions of five military officers appointed by 
the defense secretary to try defendants for any of 25 listed crimes. It 
gives the secretary the unilateral right to "specify other violations of 
the laws of war that may be tried by military commission." The secretary 
would be empowered to prescribe detailed procedures for carrying out the 
trials, including "modes of proof" and the use of hearsay evidence.

Unlike the international war crimes tribunals for Rwanda and the former 
Yugoslavia, the commissions could rely on hearsay as the basis for a 
conviction. Unlike routine military courts-martial, in which prosecutors 
must overcome several hurdles to use such evidence, the draft 
legislation would put the burden on the defense team to block its use.

The admission of hearsay is a serious problem, said Tom Malinowski, 
director of the Washington office of Human Rights Watch, because 
defendants might not know if it was gained through torture and would 
have difficulty challenging it on that basis. Nothing in the draft law 
prohibits using evidence obtained through cruel, inhumane and degrading 
treatment that falls short of torture, Malinowski said.

The U.S. official countered that a military judge "would look hard" at 
the origins of such evidence and that defendants would have to count on 
"the trustworthiness of the system."

To secure a death penalty under the draft legislation, at least five 
jurors must agree, two fewer than under the administration's earlier 
plan. Courts-martial and federal civilian trials require that 12 jurors 
agree.

© 2006 The Washington Post Company

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