Pentagon unveils war-court manual

 

crosenberg@MiamiHerald.com

Pressing forward with plans to try some Guantánamo captives, the Pentagon on Thursday sent to Congress a manual for a war-crimes court that would permit hearsay evidence, coerced testimony and the execution of terrorists by order of the president.

The 238-page manual grants a Guantánamo terror suspect the right to defend himself but only see summaries of classified information. Also, it prohibits a defense attorney from revealing potentially favorable classified evidence -- until the government has a chance to review it.

At a news conference, the Pentagon's deputy general counsel, Daniel Dell'Orto, defended the use of hearsay evidence as the result of ``the unique conditions under which evidence will be obtained on the battlefield.''

He said both defense and military lawyers would be allowed to use such evidence, thus leveling the ''playing field'' at a military war-crimes court.

The Pentagon manual could spark a fresh confrontation between the Bush administration and the new Democratic-controlled Congress.

As a guide for the first U.S. war-crimes tribunals since World War II, the manual is intended to implement a law passed last fall by the then Republican-led Congress.

The U.S. Supreme Court earlier ruled ''illegal'' the Bush administration's earlier Military Commissions for terrorism captives.

Sen. Christopher Dodd, D-Conn., a member of the Senate Foreign Relations Committee, immediately called the new guidelines ''deeply flawed.'' And in a sign of coming protests, Amnesty International issued a swift condemnation.

The Pentagon's chief defense counsel, Marine Col. Dwight Sullivan, said late Thursday that the new rules ``appeared carefully crafted to ensure that an accused can be convicted -- and possibly executed -- based on nothing but a coerced confession.''

Sullivan is a former American Civil Liberties Union lawyer who was mobilized to the Marines for the job. He is in charge of a team of military lawyers responsible with providing a zealous defense to charged captives.

''The rules would allow an accused to be executed based on nothing but hearsay,'' Sullivan said.

The Pentagon manual gives military judges and officers the role of judge and jury for enemy combatants charged as war criminals and is meant to ensure prosecution ''before regularly constituted courts affording all the judicial guarantees which are recognized by civilized people,'' according to the document.

Prohibitions against the use of evidence obtained by torture and ''cruel, inhuman or degrading treatment'' are now ''ingrained in statute,'' said Brig. Gen. Thomas Hemingway, Pentagon legal advisor to the process, in a briefing.

However, the law does allow statements obtained through coercive interrogation techniques if obtained before Dec. 30, 2005, and deemed reliable by a judge.

The U.S. military is holding about 395 men and teens suspected of links to al Qaeda and the Taliban at the U.S. Navy Base at Guantánamo Bay, Cuba, and has said it might charge 60 to 80 of them as war criminals.

Among those expected to be tried are Khalid Sheik Mohammed, whom the White House declared a mastermind of the 9/11 attacks after the CIA held and interrogated him in secret detention.

The manual provides a death penalty for those convicted of ``conspiracy or joint enterprise.''

In those cases it gives the secretary of defense, currently former CIA director Robert Gates, the power to decide how to carry out capital punishment, and says executions will be carried out by order of the president.

However, the manual says the military would not execute a captive who lacks ''the mental capacity to understand the punishment'' -- until he regains the capacity to understand.

But Amnesty International criticized the new guidelines.

''Civilians picked up far from any battlefield still may be tried in a military system of justice,'' said Amnesty International USA's attorney Jumana Musa. ``And defendants can be convicted on evidence obtained through coercion or cruel, inhuman and degrading treatment that would be inadmissible in any other U.S. judicial forum.''

The manual does not specify that the trials be held at Guantánamo in southeast Cuba. But the Pentagon's Hemingway said it was a likely locale.

Navy Cmdr. Jeffrey D. Gordon, a Pentagon public affairs officer, dismissed as ''absurd'' the notion that a captive could be executed ``based solely on hearsay or coerced testimony.''

''Such evidence, if even admitted into the proceedings, would be considered in context of the cases in their entirety,'' added Gordon, ``and may represent only a fraction of the information used by the prosecution.''

Rep. Ike Skelton, D-Mo., chairman of the House Armed Services Committee, said he would examine the manual to ensure that it does not ''run afoul'' of the Constitution.

Of particular concern to Dodd are ``the lack of safeguards against coerced evidence being introduced in trial, and the limitations on defense access to witnesses and evidence.''

In its latest formula for a war-crimes court, the Pentagon also has created a job position called a ''convening authority,'' which wasn't in the last version.

The Pentagon announced that job will be held by a woman named Susan Crawford, who was identified as an official there identified as a former military appeals court judge. No other details were provided.

It appears that she will be assuming an oversight position, a referee role, similar to that held in the last go-around by Greenberg Traurig attorney John Altenburg, a retired Army major general.

It also reverses course from the last formula and permits a captive to serve as his own lawyer -- an about-face from an earlier system, which required the appointment of an American military officer as defense attorney.

Clark reported from Washington; Rosenberg from Miami

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