Rumsfeld terms product "fair, balanced and just"


By David A. Denny
Washington File Staff Writer

Washington -- New procedures released by the Defense Department are
designed to produce "honest, fair and impartial" trials of suspected
international terrorists, Defense Secretary Donald Rumsfeld said March
21.

At a Pentagon briefing, Rumsfeld emphasized that the time taken to
develop the procedures -- more than four months since President Bush
authorized military commissions to try non-American citizens for
terrorist acts -- was necessary to make them fair and balanced.

The Defense Department "has been characterized by some as being slow,"
Rumsfeld said. "The fact is, I have been determined to get it right."

The procedures are designed to provide the president with an option
for legal proceedings against suspected terrorists in addition to
either U.S. federal court procedures or the Uniform Code of Military
Justice, Rumsfeld said.

"The commissions are intended to be different, and the reason is ...
because the president recognized that there had to be differences to
deal with the unusual situation we face," he said.

Rumsfeld cautioned against the temptation to pick apart the procedures
singly and separately.

"I suggest that no one provision should be evaluated in isolation from
the others. ... [W]e believe that most people will find that taken
together, they are fair and balanced and that justice will be served
in their application," he said.

Rumsfeld highlighted several of the main provisions of the new
procedures:

-- Defendants will be presumed innocent.

-- They will not be required to incriminate themselves or testify
against themselves.

-- Through legal counsel they will be able to discover information and
to obtain witnesses and evidence.

-- Trials will be public, proceedings will be open, and defendants
will be present to the maximum extent possible (with exceptions for
disclosure of classified or sensitive information, or to ensure the
safety of the trial participants).

-- Defendants cannot be tried twice for the same offense.

-- Defendants will receive military legal counsel at U.S. expense and
will also be able to hire (at their own expense) their own defense
counsel.

-- The standard for conviction must be "beyond a reasonable doubt" and
will require a two-thirds vote of the military commission.

-- Imposition of the death penalty would require a unanimous vote of
the seven-member commission.

-- There will be an automatic post-trial process of appeal and review.

One of the differences between these procedures and federal court
procedures that would be in the prosecution's favor, Rumsfeld noted,
is the admissibility of classified information without divulging the
sources and methods by which it was obtained.

"In a civilian trial," Rumsfeld noted, "prosecutors could be faced
with a situation where in order to avoid exposing classified
information, they would have to either allow defendants to go free, or
to accept a lighter sentence -- a situation that could be undesirable
in the case of a hardened Taliban or al-Qaida terrorist."

Defense Department General Counsel William Haynes and Under Secretary
of Defense for Policy Douglas Feith followed Rumsfeld's briefing to
answer further questions. They characterized the procedures as the
result of a concerted effort to balance the need for defendants to
receive a fair trial against the needs of the government to protect
classified information and to protect the identity of witnesses and
participants in the proceedings from possible terrorist reprisals.

Asked to respond to the charge that the new procedures are designed
merely to make it easier to obtain convictions, Feith replied, "I
would say that's wrong."

"One of the key objectives is providing a fair trial for individuals,"
Feith said. "But we're in the middle of a war, and we had to design a
procedure that would allow us to pursue justice for these individuals
while at the same time prosecuting the war most effectively," he
added.

"This is a unique conflict ... in several respects," Haynes said.
"We've never been attacked quite like this before. We've never had the
intersection of criminality and warlike acts in quite this way before.
We've never had to face an organization whose principal mode of
operation is to hide behind civilians and to attack innocent people
indiscriminately on such a large scale. The president needed to have
this extra option," Haynes said.