Conspiracy Charges

RAY SUAREZ:

Military tribunals were announced today for two of the 650 men held at the U.S. Navy prison camp in Guantanamo, Cuba. The men, from Sudan and Yemen, were alleged to have been aides to Osama bin Laden, a pay master and a propagandist. They were charged with conspiring with al-Qaida to commit murder and attacks on civilians and civilians targets, and to commit terrorism. The indictments did not say when the trials would take place, but prosecutors apparently do not seek the death penalty.

For more on what we can expect from these military tribunals, we're joined by Eugene Fidell, the founder and president of the National Institute of Military Justice. And now, Gene, more than two years, in most cases, after these 650 were arrested, we're now beginning the first trials. What's the significance of today's announcement?

EUGENE FIDELL:

Well, for one thing, Ray, it moves us from the purely theoretical realm, where we've had battles of law professors back and forth about what the process should look like, what the rules should be, how they relate to the law of armed conflict or law of war to the practical realities of actually putting on a trial. What are the facts? How does this individual or that individual fit into the government's allegations? It becomes a much more case-specific process now, and some of the traditional skills of lawyers are going to be brought to the fore, more than they have been, let's say, until now.

RAY SUAREZ:

Is the United States inventing a process from scratch, or really dusting off an old one?

EUGENE FIDELL:

I'd say dusting off an old one. The last time we ran military commissions was in the aftermath of World War II. The most famous military commission, probably, in the last century was the one involving the German saboteurs who came ashore in 1942. Other important ones involved General Yamashita, the Japanese commander in the Philippines, who was convicted of war crimes and hanged. So it's been a long time since anyone has had any actual hands-on experience, actually had to go through the process, actually put on witnesses.

RAY SUAREZ:

What's the significance of these trials being held off the soil of the United States?

EUGENE FIDELL:

From the government's perspective, the beauty of Guantanamo Bay is, according to it, it's outside the jurisdiction of the federal district courts. The significance to that is, if there's no jurisdiction in the federal court to issue a writ of habeas corpus, as a practical matter you have no review by the federal judiciary. No one can get to the Supreme Court of the United States. As you know, that's an issue that's currently before the Supreme Court, and presumably we'll have a decision by the end of this term, which is, let's say, late June. So before anything significant happens in terms of actual trials, we'll have some ruling on that from the Supreme Court.

RAY SUAREZ:

What are some of the other differences with a civilian criminal trial somewhere in the United States? Is there eventually the judge and a jury over in the jury box?

EUGENE FIDELL:

Well, there will be a jury, but the jury consists of what members simply of the commission, who will be military officers. It's not 12 citizens drawn by, at random. These are hand-picked people. Really, every case will have what we would think of as a small blue-ribbon jury. Beyond that, there's no real court of appeals to oversee the process, which is one of the aspects of the system that's been put in place that people have had substantial qualms about. Instead, there's going to be a review panel, headed by — including several distinguished Americans. But it's not a standing court. It's not people that are going to be like judges, the way, for example, a GI would have access to the civilian U.S. Court of Appeals for the armed forces. Similarly, there's no direct review by the review panel in the federal courts or in the Supreme Court of the United States.

RAY SUAREZ:

Do the accused enjoy some of the other privileges of regular accused: The presumption of innocence, the standard of guilt beyond a reasonable doubt?

EUGENE FIDELL:

Right. Those are both going to be applicable, as well as a number of others. There is a right to counsel, for example. This is not a system that will look like it's been imported from Mars. On the other hand, it's not an exact replica, by any means, of what you would expect in a criminal trial in a state court or in a federal district court, or even in a U.S. court martial. There are some significant differences, one of which involves the rules of evidence. In all those other court systems that I mentioned, the strict rules of evidence apply. We all know from the Perry Mason show and other contexts objections on the grounds of hearsay, for example. It's much looser under the rules that have been prescribed for a military commission.

RAY SUAREZ:

What about the public nature? I mean, is this going to be a public process, or can the presiding officer close this because of the sensitivity of the matters under review?

EUGENE FIDELL:

The presiding officer definitely has the power to close the proceedings, but it has to be done on a specific basis. In other words, to close an entire case would, I think, offend the spirit of the regulations that the administration has promulgated. To close parts of it based on a particular showing of need, where you knew that particular kinds of evidence that was highly sensitive and classified had to come out in order for the government or the defense to prove its point, that is certainly contemplated by the rules. How much of any one of these cases is going to be open and how much is going to be closed, we don't know at this point.

However, one recent development that's quite important and potentially disturbing is that I think only yesterday it was announced that three human rights organizations were being denied the opportunity to sit in on the proceedings and serve as observers. Instead, the only observers will be some media pool, I suppose, as well as the International Committee of the Red Cross, which, as you know, administers the Geneva conventions.

RAY SUAREZ:

Now, these are being called military tribunals, but is this the way that the United States government would try soldiers in a regular war, if these people who are being put under trial were caught on the battlefield in uniform under a flag?

EUGENE FIDELL:

No, it's not. The way we try our own soldiers or another person's soldiers … are you referring to our people or the other side of the table?

RAY SUAREZ:

The other side.

EUGENE FIDELL:

If you were referring to the other side, those people would be prisoners of war within the meaning of the Geneva Convention, and they're entitled, under the third Geneva Convention, to the same kinds of trial that our GIs would have — in other words, trial by a general court-martial, and, interestingly, complete with access to the appellate apparatus, which includes a civilian court of appeals for the armed forces here in Washington, as well as, potentially, review by the supreme court of the United States. So those are important respects in which the people being tried on these current charges are getting less process, let's say, than a person who had been labeled a POW would get.

RAY SUAREZ:

Is there any significance to you, as a close observer of this process, that these are not really kingpins, these first two to be charged, and that the prosecution is not seeking the death penalty?

EUGENE FIDELL:

I think the significance of not seeking the death penalty is, number one, it will have a soothing effect, let's say — or it would be a lot worse overseas if we were seeking the death penalty. Around the world, there's a lot of hostility to the death penalty in general, and particularly, I assume, in the Islamic community, there would be a great consternation if the death penalty were sought and actually applied. So those are concerns that I think may have played a role.

In addition, of course, you're not dealing — at least in the two cases that were announced today — with a person who was a trigger man, so to speak, for the 9/11 offenses, nor, as I read the paperwork, are you talking about someone who was a true kingpin, one of the inner, inner circle of al-Qaida.

In one instance, at least according to the charge sheet, you get the sense of — I'm talking about the gentleman who was involved with the financial arrangements, somebody who was playing quite a key role, but still one would think at some remove from the core of the al-Qaida leadership. With respect to the other individual who is accused, for example, of making propaganda film and trying to access satellite information — and failed, by the way, in doing that, according to the charge sheet — that's even more removed I think from the core. So I think those kinds of case- specific considerations must have played a role in the decision not to seek the death penalty.

RAY SUAREZ:

Eugene Fidell, thanks for joining us.

EUGENE FIDELL:

My privilege.