Pentagon establishes rules for trials of terror suspects

The Baltimore Sun

WASHINGTON -- The Pentagon paved the way for trials of detainees being held at Guantanamo Bay yesterday, issuing new rules that activate the nation's controversial law on interrogating and prosecuting terrorism prisoners.

With the rules in place, the military plans to charge between 60 and 80 of the about 395 detainees at Guantanamo Bay. Trials are likely to begin this spring, officials said, but it is unlikely the so-called "high value" detainees formerly held by the CIA will be among the first to be given a hearing.

Instead, the military is first likely to issue new charges against the 10 detainees who were first brought to court under the old commission rules that were tossed out by the Supreme Court last year. Trials have been on hold since the court's ruling in June.

The rules implement the controversial compromises worked out last year by Congress - including provisions that ban the use of statements obtained through torture but allow some coerced statements to be admitted with the permission of a judge. The law was enacted in the weeks before last fall's midterm elections, pushed by Republicans in a last-ditch effort to maintain control of Congress.

With its new rules, the Pentagon, as expected, created a legal system for the detainees held at Guantanamo that eliminates the use of Miranda rights or search warrants, legal protections that officials say make little sense for suspects captured on the battlefield.

But the rules unveiled yesterday touched off a new debate over the role of harsh interrogations - and torture - in prosecutions. In some cases, the rules appear to go further than the military commissions act itself in relaxing usual standards of American jurisprudence by allowing use of potentially tainted evidence.

For instance, under normal U.S. court practices, any evidence obtained illegally - such as through torturing or abusing a witness - is excluded from use because it is considered "fruit of the poisoned tree."

Under the rules issued by the Pentagon yesterday, statements obtained through torture are not allowed to be entered as evidence. But if the questionable treatment of a detainee yielded a piece of physical evidence - such as the location of an incriminating document - that information could be used.

Human rights organizations reacted angrily to that rule, arguing that the use of tainted evidence sent the message that torture could sometimes be justified.

"As long as you are willing to use what was obtained by torture, you are endorsing torture," said Jumana Musa, an advocacy director for Amnesty International.

Military defense lawyers who represent the detainees said the use of physical evidence uncovered by torture would undermine the credibility of the commissions.

"When we move from the established rules of evidence we risk using a system that won't produce a credible result," said Marine Maj. Michael Mori, who represents Australian detainee David Hicks.

The military commissions law does not explicitly refer to the exclusion of evidence obtained through torture. Administration officials have argued that if Congress wanted all physical evidence obtained through torture to be thrown out, it would have said so.

A House committee report on that chamber's version of the military commissions bill said last year that House members intended to eliminate the "poison tree" doctrine and allow limited use of potentially tainted evidence.

Administration officials said it made little sense in a terrorist case that could involve investigators or soldiers from several different nations to eliminate reliable physical evidence just because there was a question about how it was obtained.

But Sen. Christopher J. Dodd, a Connecticut Democrat, said he objected to the admission of coerced evidence and to other provisions included in the new rules and said he intended to introduce legislation to address what he considers flaws in the military commissions act.

Sen. Carl Levin, a Michigan Democrat who leads the Senate Armed Services Committee, and Sen. John McCain of Arizona, the committee's senior Republican, wrote the Defense Department to ask for a delay in the issuance of the rules so that Congress could be consulted. That request was rebuffed.

Last fall, some Republicans pushing the law argued quick passage was necessary to quickly try Khalid Sheikh Mohammed, an accused organizer of the Sept. 11 attacks. But yesterday, military officials indicated the most notorious accused terrorists would wait for their turn before the military commissions.

"As far as the 14 high-value detainees," said Brig. Gen. Thomas Hemingway, legal adviser for the Pentagon's Office of Military Commissions, "those cases are going to have to be developed carefully, and it's going to take some time, because they are extraordinarily complex."

Pentagon officials say most detainees at Guantanamo are unlikely ever to be tried for war crimes before a military commission. Beside the 80 likely to be brought before a commission, U.S. officials hope to return another 110 detainees to their home countries. That leaves 205 who remain in a legal limbo. Those detainees are given annual hearings on their status, but there are no plans to either prosecute or release them, military officials said.

Military officials are planning to hold the trials at Guantanamo Bay. But neither the new rules nor the military commissions act itself require the trials to be held at Guantanamo.

"They could be held anywhere," said Daniel Dell'Orto, the principal deputy general counsel. "But obviously, we have facilities at Guantanamo. The accused, or at least the detainees, are there. The logical place for them to be tried would be Guantanamo."

Julian E. Barnes writes for the Los Angeles Times.

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