Moves Made to Kick-off Military Tribunals

Although President Bush has yet to sign any executive order to designate which detainees from the Afghan conflict might be tried by tribunal, the development reportedly signals the potential kick-off of the special military forums later this year. “Although the president has not made a determination that anyone will stand trial by military commission, we have the responsibility to be ready should he make that decision,” advised Paul Koffsky, the Pentagon’s deputy general counsel.

Designated as the chief defense lawyer, Air Force Col. Will Gunn said his team will work to ensure that detainees are given the best legal representation possible. That team may include experienced civilian attorneys now being solicited and screened. “We don’t have a group of people who will roll over and go with whatever the prosecution presents,” Gunn said.

Designated as the acting chief prosecutor, Army Col. Fred Borch announced that he is already reviewing at least 10 possible cases for tribunals. Borch pledged that the tribunals would be tough but fair. “I can tell you that every single case that merits prosecution, that we’re told to prosecute, we will prosecute.”

According to Borch, those being reviewed as possible candidate to stand trial before the tribunals of 3 to 7 military officers might indeed include Jose Padilla, the Chicago man arrested in an alleged “dirty bomb” plot.

Such panels, operating with diminished rules of evidence and without recourse to a jury and certain appeal routes, would convict and sentence by a majority vote – with death sentencing requiring a unanimous vote.

Although the latest round of criticism of the administration’s handling of the prisoners captured in Afghanistan concerns the apparently open-ended nature of their detention, several months ago the anti-tribunal faction generally condemned the forums as contrary to Constitutional protections, the Geneva Conventions and illegal in the case of an “undeclared” war.

In April 2002, the European Union’s Parliament severely criticized the U.S. use of military tribunals to try the Taliban and al-Qaeda prisoners being held in Guantanamo. In a vote of 439 to 10 with 59 abstentions, the Parliament passed a human rights report that singled out the United States for violating the rights of prisoners captured in Afghanistan.

Some legal scholars in the U.S. opined that the language creating the tribunals does not confine its reach to persons involved in the Sept. 11 attacks and extends its jurisdiction to places that are not localities of armed conflict.

“First, the president must justify why the current system does not allow for the timely prosecution of those accused of terrorist activities,” argued Laura W. Murphy of American Civil Liberties Union.

But proponents of the tribunals have pointed out that they are the only practical forums to try such cases, citing: terrorists could intimidate a jury; the potential compromise of intelligence during normal criminal discovery; the proceedings in open regular civil forums could provide a platform for propaganda; and the danger of permitting long, drawn-out proceedings.

The naming of the tribunal’s counsel comes on the heels of Secretary of State Colin Powell urging the Pentagon to speed up the process, and Sen. Edward Kennedy, D-Mass., calling for the prompt release of children and Taliban fighters picked up in Afghanistan.

Sen. Edward Kennedy’s argument, framed in a recent letter to Defense Secretary Donald Rumsfeld, was that in the Massachusetts Democrat's opinion the war in Afghanistan ended last summer with the installation of the interim government. “The United States no longer has the authority” to keep holding the prisoners, he wrote.