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Detainee tribunals { November 18 2002 }

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Military Trial Plans Nearly Done
Bush to Decide Which Detainees Will Be Tried by Tribunals

By Susan Schmidt and Bradley Graham
Washington Post Staff Writers
Monday, November 18, 2002; Page A10

The government is nearly ready to go forward with military tribunals for suspected al Qaeda operatives in U.S. custody in Guantanamo Bay and Afghanistan, pending completion of final details and approval from President Bush, according to federal officials.

Pentagon General Counsel William J. Haynes II has met in recent weeks with senior officials in other agencies, including the Justice Department, to outline the plans that have been put in place for the tribunals, also known as military commissions.

The moves, officials said, confirm the government's intention to put al Qaeda prisoners on trial in special military courts in the near future. Until now, U.S. officials have been preparing rules and regulations for the tribunals, but have suggested that they were unsure if the military courts would ever be used.

Bush will make the decision about moving forward on specific cases.

The military proceedings currently are contemplated only for a small number of prisoners held in camps outside the United States and would be conducted outside this country, sources said. Only a small number of the approximately 625 detainees in the U.S. Navy prison at Guantanamo Bay, Cuba, and the 100 or so in a U.S. military compound in Bagram, Afghanistan, are ever likely to be taken before a tribunal, they said. It is not clear which detainees may be the first to face trial.

Though there has been speculation that accused Sept. 11 conspirator Zacarias Moussaoui might be moved from federal court in Virginia to a military tribunal, Justice Department officials said there is no plan to do so now.

The decision to push forward with tribunals comes at a time when U.S. interrogators have gained information from a number of high-profile detainees that may prove useful in prosecuting other al Qaeda operatives.

Among those in U.S. custody who have been providing significant information is Abu Zubaida, the high-ranking al Qaeda leader whose information led to the apprehension in Chicago earlier this year of Jose Padilla, who was allegedly in the United States to scout targets for an attack with a radiological bomb. Two others, Omar al-Farouq, the alleged Southeast Asia facilitator for al Qaeda, and Muhammad Darbi, an alleged member of a Yemeni cell, have provided information about al Qaeda plans and personnel in those regions, government sources have said.

More recently, interrogators have been questioning Ramzi Binalshibh, who admitted his role as a planner of the Sept. 11, 2001, attacks in an interview with the al-Jazeera television station this fall, shortly before his capture.

Moussaoui, who is accused of conspiring with Binalshibh in the Sept. 11 attacks, has said he wants to call Binalshibh as a witness in his trial. That prospect, coupled with the recent decision of Justice Department officials to take a more active role in the handling of his case, has led to the theory that federal officials will move to dismiss the case and put Moussaoui, who is defending himself with the aid of court-appointed lawyers, before a military tribunal.

But government sources said the Justice Department has no interest in doing so. Because Moussaoui is in this country, he could try to fight such a move in federal court. That could open the tribunal process to a constitutional challenge, something the Bush administration wants to avoid.

Instead, the government continues to debrief Binalshibh, taking advantage of the delay in Moussaoui's case granted by a federal judge who ruled the defendant needs more time to prepare his case. Moussaoui is now scheduled to go on trial in June.

Counterterrorism investigators may need months to debrief Binalshibh and would not want a trial appearance in the United States to interrupt that process, government officials said. They also may want to ensure that Binalshibh is not able to publicly reveal information that could be useful to al Qaeda.

Bush originally called for the special military proceedings in an executive order last November, and in March, Defense Secretary Donald H. Rumsfeld released a preliminary set of regulations to govern them.

The tribunals would be held amid extremely tight security, U.S. officials said, with some witnesses possibly testifying from remote locations or with electronically altered voices. Defendants will have the right to see evidence against them, unless it is classified, and will be given military counsel. A two-thirds majority of judges is required for conviction, but a unanimous vote is needed to impose the death penalty.

Pentagon attorneys are in "the process of identifying potential key personnel" for the military commissions, according to a senior defense official. The official would not specify which personnel are being screened, but the military must select judges, prosecutors and defense attorneys before a tribunal can be held.

The senior official stressed that the screening should not be taken to reflect a decision to proceed with the military commissions, but said it is necessary for the Pentagon to be in position to move ahead should the president decide to do so.

Pentagon lawyers are also drafting final implementing regulations needed to initiate the military tribunals. Officials in the Pentagon general counsel's office said they are completing work on specific charges that could be lodged against defendants. U.S. officials have said previously that the charges would include violations of the laws of war and possibly other offenses.

The president would need to designate those taken before the tribunals by name.

Staff writer John Mintz contributed to this report.

2002 The Washington Post Company

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