First US war trial since World War II tests limits of fairness in terror cases

When President Bush authorized special military tribunals for alleged terrorists, his November 2001 executive order insisted that each suspect receive a "full and fair trial."

This week, the world is getting its first glimpse of how full and fair that process may be. Military prosecutors and defense counsel are squaring off for the first time in a series of hearings this week in a makeshift courtroom at the Guantánamo Bay, Cuba, naval base. The lawyers are arguing pre-trial motions involving four defendants slated to stand trial for alleged war crimes.

None of the defendants is alleged to be a particularly big fish in the hierarchy of the Al Qaeda network. But the proceedings are being closely monitored by human rights advocates and legal scholars anxious to see how US military officials intend to balance national security concerns in the war on terror against the presidential mandate of guaranteeing the defendants fair trials.

John Altenburg, a retired Army major general in charge of the commission process, has told reporters the commission rules give the military flexibility to effectively fight terror while also bringing suspected war criminals to justice. "The charter, of course, is to have a full and fair trial for each person that's brought before a commission, and we want to get that right," he says.

But critics counter that the commission process is headed for a showdown over key procedural issues that could quickly undermine any appearance of fairness. If that happens, international observers may conclude the proceedings are little more than a kangaroo court.

For example, US civilian courts and the military justice system established by Congress in 1950 require that any statements used as evidence in a trial be obtained voluntarily. If coercion is found, the statement must be barred from trial. In contrast, commission members are empowered to rely on any information that they decide "would have probative value to a reasonable person."

Even if the statement was obtained under some form of mistreatment or torture, critics say, it could still be considered by the commission, provided the commission members believe the information reliable.

"It is astounding to us that in 2004 any US court would leave open the prospect of using evidence obtained under torture or mistreatment, but that is one of the issues that presumably will be raised at these hearings," says Alistair Hodgett of Amnesty International in Washington.

The issue may be central to the Guantánamo cases because most of the terror suspects have been held without charge and repeatedly interrogated by intelligence agents for more than two years. Some were told that if they cooperated they would receive better treatment.

The commission trials mark the first time since 1948 that the US has used such extraordinary measures in attempting to bring a suspected war criminal to justice. The military commission procedure was two and a half years in the drafting.

The end result is a stripped-down judicial system run by the military without many of the safeguards present in either the US civilian courts or under the Uniform Code of Military Justice, the legal system that applies to the US armed forces.

Some legal experts say the commission rules violate international accords that require judicial systems to afford the same level of due process to suspected war criminals as that nation provides for its own military defendants. Others say the commission process is a necessary and reasonable accommodation to help the US fight and win a war against a lawless enemy.

If the government granted Al Qaeda suspects the same trial rights as US military defendants, it would provide a window to US vulnerabilities, some analysts say.

"You are giving the terrorists a road map of the government's case, its interrogation methods, the government's sources of information," says Margaret Stock, a military law expert who teaches at the US Military Academy at West Point.

"We know from documents that have been released that Al Qaeda is a sophisticated student of the American judicial process," she says. "Part of their strategy is to use that system against us."

Guaranteed protections under the commission process include the presumption of innocence, the right to decline to testify, and appointment of military defense counsel at no cost to the defendant. Defendants can also hire their own counsel.

There is no right of appeal to a judge independent of the executive branch. There is no right of a defendant to confront or even be advised of all evidence against a suspect when that evidence is considered "protected information" by military authorities. And military officials reserve the right to monitor attorney-client conversations, though commission rules forbid military prosecutors from gaining access to such information.

Kevin Barry, a retired Coast Guard captain and a director of the National Institute of Military Justice, says the US has a long history dating back to the Revolutionary War of using commissions to try suspected war criminals. But writing in the Chicago Tribune recently, he said the current commission rules fail to provide the same level of fairness endorsed by prior presidents and generals dating back to George Washington.

"The tribunals now being assembled in Guantánamo Bay do not pass the judicial smell test," he says. "Whatever they are, they aren't 'military commissions,' as that term has been used and understood in American military law for more than 225 years."

Mr. Barry says the Pentagon and its commission should abide by the same trial rules Congress has endorsed in the Uniform Code of Military Justice.