Changes expected in detainee tribunals

Critics say conflicts of interest exist, process doesn't allow fair trials

September 26, 2004|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - Although the first full war crimes trial before a military tribunal at Guantanamo Bay is not scheduled to begin until December, officials acknowledge that the process is in turmoil and say substantial changes will be made in coming weeks to restore credibility.

The officials said problems that surfaced at the military commission's opening hearings this summer provided new ammunition for domestic and foreign critics as the process faces legal challenges in the military and federal court.

The changes are likely to include altering the membership of the commission and improving a translation system that has proved inadequate.

The deputy chief judge of the Air Force, who is serving as a Guantanamo defense lawyer, filed a motion last week urging the government to drop the process and begin over using the military's court-martial procedures. Lt. Col. Sharon Shaffer, whose client is charged with serving as a principal accountant for al-Qaida, said in her motion that the military commission - which convened for the first time last month - is an archaic system that dates to World War II and has flaws that cannot be fixed.

Shaffer argued that the process would not provide a "full and fair trial" to which the defendants were entitled.

Shaffer, who has delayed her assignment as the No. 2 military judge in the Air Force while she defends Ahmed Mahmoud al-Qosi, said the military should switch to the court-martial system that was adopted in 1950 as a response to the unfair features of the military tribunal system.

One significant difference in a court-martial, she said, is that the judge and jury are separate. The military commission members serve as both judge and jury; because the presiding officer is the only lawyer, the other members could defer to him on questions of law, giving him an unequal influence.

Shaffer's motion, which was filed with the military commission itself, will eventually be referred to higher authorities in the Pentagon. Her challenge mirrors a separate lawsuit filed in Washington asking a federal judge to halt the tribunal proceedings.

The litigation inside and outside the military comes after widespread dismay in the Pentagon over the first four days of preliminary hearings last month.

Both the defense and, more recently, the prosecution have argued that most of the military officers serving on the five-member panel have personal conflicts and are unsuitable to sit in judgment. Much of the attention focused on the panel's presiding officer, Col. Peter E. Brownback III, who came out of retirement to serve.

Under questioning in a hearing, Brownback said he had never told a group of lawyers that the detainees had any rights to a speedy trial, a statement that could have demonstrated that he did not have an open mind on the issue. When he was then told by a Navy lawyer that an audio recording of such a meeting existed, he was stunned and said he had not been aware the meeting was being taped.

Defense lawyers also suggested that he had been selected because of his longtime relationship with John D. Altenburg, the senior Pentagon official who is supposed to oversee the trials in a neutral manner. Brownback's wife worked for Altenburg, and they had attended each other's private family parties.

Other panel members also presented potential conflicts or problems. Col. R. Thomas Bright helped transport suspected terrorists to Guantanamo, Col. Timothy Toomey served as an intelligence officer in Iraq and Afghanistan, and Lt. Col. Curt Cooper said under questioning that he was unfamiliar with the Geneva Conventions, which serve as the basic laws of war.

In a surprise this month, the military's chief prosecutor, Col. Robert Swann, agreed with many of the defense lawyers. Swann said that Brownback should consider stepping down and that he did not object to efforts to disqualify some other tribunal members because of conflicts or possible bias.

Senior Pentagon officials who spoke on the condition they not be named, because they are involved in the commission process, said that they expected some changes on the panel's personnel, but that they did not think that would greatly delay planned trials.

Another issue that surfaced at the initial hearings was that the translations from Arabic to English and back were evidently riddled with problems. One senior official said the commission's first sessions at which the first four defendants appeared was "rough going." The official said that the translation problems should be corrected when the preliminary hearings resume in November, well before the first trial begins in December.

Col. Wayne Dillingham of the Air Force, a military lawyer who works for the commission, said senior officials had not lost faith in the process and continued to believe that they would be able to provide full and fair trials. Dillingham said the commission was one of several options to try war crimes. He said that it had the advantage of providing "adequate protection for national security information," and that the "rules of evidence take into account the unique battlefield environment that is different from peacetime law enforcement practice."

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