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Tribunals break sharply from civilian courts

By Kevin Drew

ATLANTA, Georgia (CNN) -- As Congress and the U.S. debate President Bush's order for military tribunals, details of the legal proceedings are being worked out by the Department of Defense.

A military tribunal is essentially a court-martial, or a military trial, during a time of war. The rules of evidence that are in the civilian criminal trials do not apply.

The tribunal ordered by Bush would target non-U.S. citizens suspected by the White House to be terrorists.

"These are not ordinary criminal defendants, in the sense that even someone who commits a grievous crime as an isolated murder does not have as their fundamental purpose bringing down an entire society," said Douglas Kmeic, dean of the Catholic University School of Law, in an interview with CNN.

U.S. citizens who fought for the Taliban in Afghanistan would be exempt from prosecution under President Bush's military tribunal order, the State Department's war crimes expert told a Senate committee.

Countries' varying laws may challenge U.S. terror probe 
A look at previous tribunals 
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Various details of Bush's November 13 order are still being worked out. For example, under the current regulations on U.S. military tribunals, findings of guilt can be appealed to the secretary of defense and the president. But that may change, said David Sheldon, a Washington attorney and former U.S. Navy appellate lawyer.

Bush's order also left to the president the decision on who would face prosecution in the tribunals.

The president's power to convene a military tribunal comes from the authority he wields as commander-in-chief, under Article 2 of the U.S. Constitution. It is distinct from Congress' power to enact laws that govern the land and naval forces. The Supreme Court has consistently upheld the use of tribunals.

Military jurisdiction over tribunals comes from the Constitution and international law. International law includes the law of war. The "Manual for Courts-Martial," which governs trial by court-martial, refers to tribunals as "commissions," Sheldon said. The manual provides that, subject to any applicable rule of international law or to any regulations prescribed by the president, military commissions shall be guided by the appropriate principles of law and rules of procedure and evidence prescribed for courts-martial.

The United Nations only requires that military tribunals be "fundamentally fair." That law further specifies the minimum requirements to be fundamentally fair, all of which are detailed in President Bush's November 13 order.

Bush's order provides that tribunals can only try non-U.S. citizens involved in international terrorism. The Supreme Court has ruled that military tribunals cannot try United States citizens if civilian courts are open.

Members of the al Qaeda organization are not considered "prisoners of war," and therefore, do not have protection under the Geneva Conventions. Instead, al Qaeda terrorists are, under international law, considered "illegal combatants," and are subject to trial by military tribunals. The United Nations has established criminal tribunals to try illegal combatants in Yugoslavia and Rwanda.

In comparing a military tribunal to a court-martial or civilian court:

-- A federal trial is generally open to the public, while a military tribunal may be closed. Advocates of the tribunal process say such a setting denies a public forum to the accused

-- A tribunal may be held in a different country, in a territory such as Guam or even on a U.S. naval ship.

-- Greater security can be imposed over what information is disclosed in a military tribunal as compared with a federal prosecution.

-- Like a court-martial, a military tribunal will be composed of military members, ostensibly only officer members and usually no fewer than five, the minimum number that can sit for a general court-martial.

-- Unlike a federal prosecution, a person tried by a military tribunal does not have the right to a jury trial.

-- A tribunal's finding of guilt or imposition of the death penalty does not have to be unanimous. In the case of a five-member panel, four of the members could vote guilty and impose the death penalty.

-- A death penalty may be imposed immediately.



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