Pentagon Releases Rules for Trials of Terrorism Suspects

Washington Post Staff Writer
Friday, January 19, 2007; Page A13

The Defense Department yesterday released its detailed rules for military trials of terrorism suspects, a move that reignited last year's controversy over a joint decision by the Bush administration and the Republican-led Congress to restrict key detainee rights during such trials.

The 238-page manual, issued after a three-month drafting effort, closely tracks the Military Commissions Act, approved mostly by Republicans in September. It incorporates controversial rules blocking a detainee's right to challenge his or her detention and allowing prosecutors to use hearsay information or coerced evidence if a military judge rules that it is reliable and relevant.

The manual is meant to prescribe how military commissions will try some of the roughly 395 prisoners now detained at the military prison at Guantanamo Bay, Cuba. Officials predicted yesterday that 60 to 80 will face the commissions.

Under last year's legislation, the manual's procedures could also be applied to foreign nationals in the United States designated as "enemy combatants" under a controversially broad definition of that term.

In releasing the manual, Daniel J. Dell'Orto, the Pentagon's principal deputy general counsel, disclosed that the new military commissions are to be overseen by Susan J. Crawford, who served in the late 1980s as Army counsel and Defense Department inspector general, under then-Defense Secretary Richard B. Cheney. She is currently a senior judge of the U.S. Court of Appeals for the Armed Forces.

Crawford will have the authority to select judges for the commissions, send charges to trial and act on commission findings or verdicts, Pentagon officials said.

Although Dell'Orto said the manual was drafted to ensure fairness and to hew closely to what Congress ordered, human rights groups and other critics faulted the rules for not fixing what they consider to be defects or loopholes in last year's legislation. The critics said the manual will give new impetus to their drive to get the law amended in the new Congress, controlled by Democrats.

Several such efforts are already underway. Early this month, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and the panel's ranking Republican, Sen. Arlen Specter (R-Pa.), introduced legislation to overturn last year's narrow vote denying detainees the right to challenge their detention through habeas corpus proceedings.

Sen. Christopher J. Dodd (D-Conn.) said yesterday that he is drafting a bill with Leahy and Sen. Russell Feingold (D-Wis.) to change what Dodd called the manual's unwarranted "limits on the independence of military judges," inadequate safeguards against the use of coerced evidence and limits on defense lawyers' access to witnesses and evidence.

The outcome of this debate will affect the adjudication of allegations against some of the longest-held and most well-known terrorism suspects -- including 14 people transferred to Guantanamo Bay last year from secret CIA prisons.

The Bush administration has sought maximum flexibility in its use of evidence, allowing, for example, the use of information obtained from cruel, unusual or inhumane interrogations before 2005, when many of those in CIA custody were questioned. Human rights groups and many Democrats say, however, that it will mean more to the public if convictions are secured using procedures that fully comply with international legal standards.

Dell'Orto, speaking at a Pentagon news conference, said the new manual enforces a presumption of innocence, includes a requirement that defendants be allowed to see all the evidence used against them, safeguards defendants against self-incrimination and prohibits evidence obtained through torture.

Comments on the new manual were solicited only from the Justice Department and other executive branch agencies, Dell'Orto said yesterday, provoking complaints from several military-justice experts that the rules should have been subjected to a period of public comment. "This was the antithesis of a transparent rulemaking process, and it was completely unnecessary," said Eugene R. Fidell, president of the nonprofit National Institute of Military Justice.

Tom Malinowski, Washington advocacy director for Human Rights Watch, said he faults the manual for not requiring a presiding judge to tell a defendant or his attorney whether critical evidence was obtained from coerced confessions.

Marine Col. Dwight Sullivan, the chief defense counsel of the Pentagon's Office of Military Commissions, similarly said that the rules "would allow an extremely unfair trial" and are a "recipe for laundering" uncorroborated evidence derived from extreme coercion.

Sullivan said they even leave open the possibility of someone being sentenced to death without knowing that he had been convicted based on coerced evidence and without having the chance to contest the evidence on that ground. A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, said such an outcome is improbable.

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