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Paul Williams: Differing legal systems challenge terror probe

Paul Williams  

By Meriah Doty

ATLANTA, Georgia (CNN) -- Unique systems of law in countries around the world are working together to fight terrorism. Professor Paul R. Williams from American University talked to CNN about the problems the investigation could face and legal instruments on which the U.S. has been relying.

CNN: What are potential problems a global war on terrorism might face in dealing with multiple countries and their unique legal systems?

PAUL R. WILLIAMS: Given the existence of al Qaeda cells in dozens of countries, it will be difficult to ensure the effective prosecution of suspected terrorists in large part because of the differing quality of investigative and prosecutorial staff in the different countries. It will similarly be difficult to ensure the protection of human rights, as many of the states where al Qaeda members are present tend to rely on illegal methods of investigation, including torture.

CNN: There is a potential sticking point in extraditing suspected al Qaeda members from Spain because of the U.S. death penalty. Do you foresee similar problems in other countries?

WILLIAMS: Given that the European Convention on Human Rights and other instruments of European law prohibit the death penalty we can anticipate that our European allies will refuse to extradite suspected al Qaeda members to the United States absent an assurance they will not be executed if found guilty. Despite its best efforts, the Bush administration will unlikely be unable to persuade the European states to lift this condition, as the opposition to the death penalty is fairly well enshrined in European domestic law.

CNN: President Bush has consistently argued that global cooperation is necessary in the fight against terrorism. Does this mean international law that could slow the investigation will be ignored?

WILLIAMS: On the contrary, in the short term the United States is relying upon a number of legal instruments, such as the NATO treaty, U.N. Security Council resolutions and bilateral treaties to prosecute its war on terrorism. International laws relating to the right of self-defense are also being used as a basis for the American/British air campaign in Afghanistan and for the deployment of U.S. and British ground forces. Moreover, the human rights standards to which the post-Taliban government will be held, in particular with respect to women's rights, will be deeply influenced by international human rights.

In the long term, we are likely to find it necessary to use international law to create some type of Security Council mandated terrorism tribunal to prosecute suspected terrorists. The most expedient option would be to transform the Yugoslav tribunal into such a court via an expansion of its jurisdiction and the provision of additional resources.

CNN: Critics of President Bush's support for military tribunals claim it would compromise American principles. What is at stake -- laws, the U.S. Constitution, a concept of U.S. justice?

WILLIAMS: While the level of due process provided for in the military tribunals authorized by the Bush administration does not conform to U.S. constitutional protection, if implemented carefully, they likely will conform to international standards. While the order establishing the tribunals has been subject to significant criticism for violating basic due process protections, we do not in fact know the actual level of protections, as the Pentagon has yet to issue the rules of procedure and evidence applicable to the tribunals.

While there is an important risk the Pentagon may issue rules that substantially depart from international standards, it is crucial to recognize that American due process standards far exceed international standards.

For instance, according to the rules of procedure and evidence drawn up by international judges on the International Criminal Tribunal for the Former Yugoslavia, hearsay is admissible, the identity of witnesses may be withheld from the accused, they may be allowed to testify from a remote location, decisions are taken by a less than unanimous vote, the standards of proof are lower than in American courts, a form of trial in absentia may be held, and there are significant protections for national intelligence.

The Yugoslav tribunal does, however, subscribe to all the basic principles associated with a "full and fair" trial and it will be necessary for the Pentagon to fully consider the incorporation of these principles into its rules of procedure and evidence for the military tribunals. Otherwise, the tribunals will be subject to such significant criticism that they will fail to serve their purpose of deterring future acts of terrorism.



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