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Military tribunal rules have some due process

A handful of terrorist suspects will face trials before special military tribunals in a hybrid system of justice that has not been used since World War II.

The Pentagon plans to announce today the rules for the trials, which will likely be held at the U.S. Navy base at Guantanamo Bay, Cuba, where 300 suspected al-Qaida and Taliban detainees are held.

The trials will resemble traditional courts-martial, but appeals will be limited to a three-member panel of military officers, including at least one judge. Courts-martial can be appealed to civilian courts.

Details of the planned tribunals emerged Wednesday as military lawyers briefed staff members of the Judiciary and Armed Services committees in Congress. House Judiciary Chairman James Sensenbrenner, R-Wis., also received a "courtesy briefing."

The trials will include some due process protections that go beyond or even change President Bush's Nov. 13 executive order establishing tribunals, according to one former official close to the decision and another who was briefed on the system.

Bush's original order declared the Sept. 11 attacks an "extraordinary emergency" and called for special military trials that could act in secret, unlike civilian courts. They would try "unlawful belligerents" _ noncitizens who committed or assisted in war crimes.

Bush said Wednesday that the tribunals are "an option we'll be using" instead of civilian trials that "may jeopardize national security." But he had "nobody in mind yet" to send before a tribunal.

"The ones in Guantanamo Bay are killers," Bush said. "It's in our national interest to make sure we know enough about them before we decide what to do with them."

Legal and civil rights groups, along with some lawmakers and European officials, had criticized Bush's original order establishing the tribunals for its scope, lack of due process and absence of any appeals process.

Provisions to be announced today respond to some of that criticism. They state that:

+ A defendant can choose an attorney or have a military lawyer appointed, as in a court-martial.

+ A panel of three to seven officers will hear each case, as in a court-martial. Conviction will require a two-thirds vote. The death penalty will require unanimity _ a change from Bush's order, which allowed a two-thirds vote.

+ Defendants will be presumed innocent and allowed to see evidence against them. But relaxed standards of evidence will allow hearsay and may include documents collected under circumstances where the chain of custody is not clear, as in Afghanistan.

+ Trials will be mostly open. Some evidence may be heard in secret.

Former military judges and lawyers said the Pentagon and State Department lobbied hard for some of these provisions. They were concerned that the military trials be perceived as fair.

In recent years, U.S. officials have criticized military tribunals that tried Americans in Peru and other countries for their lack of due process.

"We're setting a modern-day example for the world, and I think they're coming up with rules and procedures that will work," said John Hutson, a former Navy judge advocate general.

"We have to remember that one day we could find one of our own people in a similar situation," he added. "This needs to be perceived as a legitimate process."

The limited right of appeal to a special panel of officers _ not independent review in federal courts _ could prove to be the most controversial part of the system. Under the Nov. 13 order, Bush has the final decision on overturning a verdict or sentence.

Amnesty International and the American Civil Liberties Union criticized the military trials, especially the appeals process.

"The military commissions threaten to severely undermine, rather than reinforce, confidence in the administration of justice and the rule of law," said William Schulz, executive director of Amnesty International USA.

From the Civil War to World War II, U.S. presidents have asserted executive authority to hold military tribunals and have usually been upheld by federal courts.

Congress has the constitutional authority to set the rules for such trials but has shown little inclination to get involved.

The administration was surprised by the harsh reaction by many lawyers to the president's original order. The administration has rejected a resolution from the American Bar Association and the National Institute of Military Justice that it provide a notice-and-comment period on the rules, citing "the need to move decisively and expeditiously in the ongoing war against terrorism."

Developing rules for the trials has been a closely held process for four months, overseen by White House counsel Alberto Gonzales and Defense Department General Counsel William Haynes.

_ Information from the New York Times was used in this report.

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