washingtonpost.com
On Prosecuting Detainees
Draft Bill Waives Due Process for Enemy Combatants
By R. Jeffrey Smith
Washington Post Staff Writer
The Bush administration likes to keep its work under wraps until it's finished, but that proved impossible with a draft bill detailing procedures the administration is considering for bringing to trial those it captures in the war on terrorism, including some stark diversions from regular trial procedures.
A copy of the draft, obtained this week by The Washington Post and others, explains how the government would create commissions of U.S. military personnel who could impose a penalty of life imprisonment or death based on evidence never disclosed to the accused. Military judges could also exclude defendants from their trials whenever "necessary to protect the national security."
The copy, which is paraphrased below, is marked "For Discussion Purposes Only" and did not reflect the comments of uniformed military lawyers. Those lawyers have privately criticized the Bush administration's policies on detainees, arguing that Washington should set higher standards to ensure that others treat captured U.S. soldiers fairly.
Their views are being solicited only now. But even after the administration reaches accord, the trial procedures still must pass a gantlet of senators from both parties who have criticized the administration for mistreating detainees. And the Supreme Court, which last month declared an earlier plan for the trials illegal, may eventually weigh in again if defendants challenge the new "military commissions" and appeal the verdicts.
Rationale
The draft states that using the federal courts or existing military court-martial procedures to try suspects in the war on terrorism -- described formally as "alien enemy combatants" -- is "impracticable" because they are committed to destroying the country and abusing its legal processes. Routine trial procedures would not work, it states, because suspects cannot be given access to classified information or tried speedily. Service members involved in collecting evidence cannot be diverted from the battlefield to attend trials, and hearsay evidence from "fellow terrorists" is often needed to establish guilt.
Formation of Military Commissions
The commissions are to be established under existing presidential authorities but appointed by the Secretary of Defense or his designees. The jurors will be any commissioned, active-duty military officers considered qualified because of "age, education, training, experience, length of service, and judicial temperament." The head of each commission will be a military officer with legal credentials.
Covered Crimes and Persons
The draft initially said that only "alien enemy combatants" who are not U.S. citizens can be tried by military commissions. That phrase is crossed off in the text of this copy, and instead it appears to cover anyone "engaged in hostilities against the United States or its coalition partners" who violate the laws of war or provisions of this bill.
The commissions have jurisdiction over 19 offenses considered violations of the laws of war, ranging from attacking civilians and protected property to using persons and property as shields and torture, maiming, mistreating dead bodies, rape and conspiracy. The commissions also can be used to try those who -- in the context of armed conflict -- hijack vessels or aircraft, destroy property, aid an enemy, or commit acts of terrorism, murder or spying.
Trial Procedures
"A person charged with an offense under this Act may be tried and punished at any time without limitations," the bill states. Speedy trials are not required. Defendants are entitled to two principal lawyers -- one drawn from U.S. military ranks and a civilian cleared to read materials classified as "Secret."
Hearsay information is admissible at the discretion of the military lawyer presiding over the commission, unless circumstances render it unreliable or unnecessary. That lawyer can close the proceedings to protect any information that might "cause identifiable damage to the public interest" or endanger participants or national security interests. The lawyer can also order "exclusion of the defendant" and his civilian counsel, but instances of this should be "no broader than necessary." Classified evidence can be provided to the defendants in summary form but is not required if doing so would compromise intelligence sources.
Punishment
A two-thirds majority vote is needed to convict on any charge; a three-quarters majority is needed to order a sentence of more than 10 years. All members present must vote to impose the death penalty, and it must be approved by the president. But those enemy combatants and "persons who have engaged in unlawful belligerence" can be detained until "the cessation of hostilities," notwithstanding any jail sentence they receive from the commissions.