Pentagon compiling a list of terrorism crimes

Officials will pick charges against captives brought before military tribunals

March 01, 2003|By Richard A. Serrano | Richard A. Serrano,SPECIAL TO THE SUN

WASHINGTON - Moving closer to holding military tribunals for captives from the war on terror, the Pentagon said yesterday that it is considering a wide range of possible criminal charges that could be filed - two dozen that include murder, rape and poisoning.

The list was disclosed now because U.S. military authorities are seeking comment from the public this month before finalizing the types of charges and deciding which, if any, captives should be taken before a military commission.

The Pentagon insists it will conduct "full and fair legal proceedings" should a military commission be convened for any of the captives.

Assorted statutes

For the past year, officials said, they have studied definitions of crimes as outlined in various international treaties and conventions, domestic and international statutes, and judicial decisions.

They wanted to sort out which might apply to U.S. military tribunals arising out of the war on terrorism.

"Over the past few months, the Department of Defense and other government lawyers have analyzed these sources of law and consolidated in a single resource a list of certain crimes," said Whit Cobb, the Pentagon's deputy general counsel.

"In the event that a military commission is warranted, this instruction will assist all participants - including prosecutors, defense counsel and military commission members - to understand what constitutes an offense that is try-able under the law of armed conflict," Cobb said.

Input from public

In the next two weeks, the Pentagon hopes to formalize its "Crimes and Elements for Trials by Military Commission," after first hearing from the public about any other charges that should be considered or to raise questions about charges on the list.

"This is a draft document, and it's not exhaustive," cautioned one top-level official in the Pentagon's General Counsel's Office. "It doesn't spell out every single crime that a military commission could try."

About 1,000 people were reportedly captured during the war in Afghanistan and on other fronts after the Sept. 11, 2001, terrorist attacks on Washington and New York.

About 650 of the prisoners are being held at the U.S. Naval Base at Guantanamo Bay, Cuba. Others, including many higher-level terror suspects, are in U.S. military custody in undisclosed locations.

Once the list of charges is completed, the military will begin weighing which captives should be prosecuted and where.

Among the charges on the draft roster are attacking civilians, taking hostages, treachery and terrorism. Also listed are liability offenses, such as aiding and abetting a terrorist plot, and conspiracy.

Once the president designates an individual as subject to a military commission, military prosecutors would study the list to determine what charges should be filed.

Defense attorneys would work off the same list, looking for weaknesses in the case that might help captives beat the charges against them. For instance, some crimes, such as the terror attack on the USS Cole, could be argued as being military objectives rather than war crimes.

In other instances, there might be a legal debate over whether people who become so-called "human shields" - who voluntarily travel to prospective bombing sites in an effort to ward off U.S. attacks - are acting out of conscience or are committing war crimes.

The tribunals would be held before a military judge and jury.

Words of praise

Eugene R. Fidell, who as president of the National Institute of Military Justice has been closely monitoring the plans for tribunals, said the Pentagon is to be commended for drafting the list and seeking public input.

"I consider this a very important development in itself, and will contribute to public confidence in the ultimate process," he said.

"I think it's greatly to the Department of Defense's credit that they thought this would be worthwhile."

Richard A. Serrano writes for the Los Angeles Times, a Tribune Publishing newspaper.

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