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Lawyer criticizes rules for tribunals { January 22 2004 }

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Lawyer Criticizes Rules for Tribunals
Trials Won't Be Fair, Military Attorney Says

By John Mintz
Washington Post Staff Writer
Thursday, January 22, 2004; Page A03

A military defense lawyer for an Australian detainee expected to be the first man tried before a military tribunal denounced President Bush's rules for the special courts yesterday, saying they are skewed against defendants and could result in proceedings that resemble political trials in authoritarian Third World countries.

Marine Corps Maj. Michael Mori's news conference demonstrated that he and other military defense attorneys appointed by the Pentagon to represent defendants in the tribunals agree on many points with human rights activists around the world who have criticized the tribunals.

"The military commissions will not provide a full and fair trial," said Mori, who represents David Hicks, an Australian detainee at the U.S. Navy prison in Guantanamo Bay, Cuba, who was arrested while allegedly fighting with the Taliban in Afghanistan in late 2001. "The commission process has been created and controlled by those with a vested interest only in convictions," Mori said.

Mori was one of five military defense attorneys for future tribunal defendants who filed a friend-of-the-court brief with the Supreme Court last week seeking access to federal courts for their clients. The U.S. government contends that the 680 alleged al Qaeda and Taliban fighters at Guantanamo Bay are not entitled to access to U.S. courts, whether they are assigned to military tribunals or not.

U.S. military officials rejected Mori's criticisms and said they show that tribunal defendants will have aggressive representation in court. "His job as defense counsel is to zealously defend people who may be tried before military commissions," said Maj. John Smith, a spokesman for the Pentagon's tribunal office. "I expect him to raise issues in his client's interest."

Smith added: "The commissions are set up to provide full and fair trials while protecting sensitive information and taking into account the unique battlefield environment."

Mori said he objects to one rule that bars tribunal judges from dismissing charges filed by Pentagon officials. Another unfair provision, he said, is that convictions are to be appealed not to civilian courts but up the chain of command to the defense secretary and the president.

Echoing the privately expressed views of some U.S. military officials, Mori said the tribunals might lead adversary nations to try U.S. soldiers under unjust terms if they are captured in war zones. "What's to stop the North Koreans from arresting a [U.S.] contractor as a spy and trying him under the very rules we set up?" he asked. "We wouldn't tolerate it."

Smith, the Pentagon spokesman, said the tribunals will have many rules that are akin to those in criminal courts, including the presumption of innocence and a requirement of proof beyond a reasonable doubt to secure a conviction.

Mori declined to detail the allegations against Hicks, a former adventurer and kangaroo skinner who converted to Islam. But he said that "mentally, he's degenerated to the point where his main concerns are basic human instincts, food, shelter. Two years in detention creates disorientation."

Informed sources said U.S. officials want Hicks to be the leadoff tribunal defendant because he informally agreed, before a lawyer was appointed for him, to plead guilty to some charges and to make a public statement of regret about his jihadist past. In exchange, the government would agree to a relatively light sentence.

But Mori and Hicks's other lawyers are urging him to reconsider any deal reached under what they believe are the prison's inherently coercive conditions, the sources said. Mori declined to discuss the matter.

Mori said he would prefer that Hicks be tried in his native Australia, or even under U.S. military rules for courts-martial. He and his uniformed defense colleagues have tried for months to persuade superiors to soften the tribunal rules, but to no avail, Mori said.

2004 The Washington Post Company

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