21Apr02
US Weighing New Doctrine for Tribunals.
WASHINGTON, April 20 -- Uncertain about how they will be able to prosecute many of the nearly 300 prisoners detained at a naval base in Cuba, Bush administration officials are considering a new legal doctrine that would allow prisoners to be brought before military tribunals without specific evidence that they engaged in war crimes.
The new approach would make it an offense to have been a senior member or officer of a Qaeda unit that was involved in any of the regular crimes of war, like mistreatment of civilians.
One administration official said the effort came out of increasing uneasiness that the interrogations of the prisoners, who were taken from Afghanistan to the naval base at Guántanamo Bay, had not yielded enough information to charge very many with traditional war crimes.
The official, who spoke on condition of anonymity, said the questioning was going slowly and the prisoners were largely uncooperative. No one, the official said, has confessed to any atrocity or violation of the laws of war. Nor, the official added, have the interrogators had much success in getting prisoners to provide information that could be used against other captives.
Another official said the new approach would allow military prosecutors to charge some captives even without evidence from witnesses or documents that they committed war crimes.
"It could be enough to show that they were part of a group and furthered its aims," this official said.
"They would be shown," the official said, "to be a part of a group that did things like killing civilians and noncombatants, attacked targets with no military value or took or killed hostages" -- the traditional roster of war crimes. "Also engaging in torture," the official said. Officials said the legal mechanism for charging someone with being a member of a Qaeda unit involved in crimes was not complete but would probably be detailed in a document to guide military prosecutors.
Administration lawyers have already begun work on the issue, officials said, and expect that their efforts will produce the document, which would be formally issued by the Defense Department.
Prof. Detlev Vagts of the Harvard Law School, an authority on the law of war, said the government appeared to be trying to build a military version of the civilian charge of conspiracy.
In the Nuremberg trials after World War II, the Allies declared the Nazi special police, the SS, a criminal organization. But Professor Vagts said that, in the end, no one was ever charged simply on the basis of membership in the SS.
People were usually prosecuted for war crimes on testimony by witnesses or, in the case of senior officials, on the extensive records the Nazi authorities kept. No equivalent documentation exists in Afghanistan.
The unease about what to do with the prisoners is occurring after the administration, notably the Defense Department, spent considerable effort drafting regulations for the military tribunals. A government lawyer said White House officials were becoming increasingly concerned that the tribunals, authorized despite great criticism, might not be put to much use.
That seems unlikely now, officials said, with the capture in Pakistan last month of Abu Zubaydah, believed to be the director of operations for Al Qaeda and thus the highest-ranking official of that organization in United States custody. Mr. Zubaydah, Justice Department officials have said, is a near-ideal candidate for a tribunal trial.
One official said the major unanswered question was whether the military would seek the death penalty for Mr. Zubaydah, an issue to be deferred until he is interrogated and his cooperation is evaluated.
Officials said the administration's new doctrine was being fashioned to create an offense different from what lawyers call a status crime. The Supreme Court has rejected status crimes, in which it is an offense merely to be a member of a group, like the Communist Party.
The new doctrine, lawyers said, is an effort to comply with rulings that require not only membership in a group but also some identifiable connection to its aims. In this case, the new guidance would probably require a finding that a prisoner was not only a member of Al Qaeda but also that he furthered its aims.
Although the Defense Department's regulations do not provide for review of tribunal verdicts by civilian courts, lawyers for people convicted by the tribunals are certain to ask federal courts to intervene. That is probably one reason the new guidance appears to consider Supreme Court precedents in similar cases.
After World War II, for example, the court upheld a conviction by a military tribunal of a Japanese commander whose troops committed atrocities in Manila while he was elsewhere in the Philippines.
[Source: The New York Times - By Neil A. Lewis - April 21, 2002]
This document has been published on 19Sep02 by the Equipo Nizkor and Derechos Human Rights