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Prosecutor, Defense Counsel Prep for Military Commissions

By Gerry J. Gilmore
American Forces Press Service

WASHINGTON, July 30, 2003 – Six enemy combatants now being detained by DoD will be evaluated to determine if any should be charged and tried for war crimes under military commissions, two senior U.S. military lawyers told the American Forces Radio and Television Service recently.

The detainees were seized during U.S. and coalition military operations precipitated by the Sept. 11, 2001, terrorist attacks on the United States. The al Qaeda terrorist group, led by Osama bin Laden, is universally believed to have planned and carried out the 9-11 attacks.

The Office of Military Commission's acting chief prosecutor, Army Col. Frederic Borch III, and acting chief defense counsel, Air Force Col. Will Gunn, told AFRTS that Deputy Defense Secretary Paul D. Wolfowitz would determine if there is sufficient evidence to bring any or all of the six to trial.

The two veteran military lawyers noted that President George Bush, commander-in- chief of the U.S. armed forces, determined on July 3, 2003, there is reason to believe that each of the six enemy combatants was a member of al Qaeda or was otherwise involved in terrorist acts against the United States.

As such, the six detainees fall under the president's Military Order of Nov. 13, 2001, which directed the establishment of military commissions to provide full and fair trials of enemy combatants suspected of having committed war crimes against the United States, as recognized under international law.

Such war crimes, Borch noted, may include, but are not limited to:

  • Conspiracy to commit murder.

     

  • Unlawful attacks on civilian objects.

     

  • Torture.

     

  • Killing of prisoners of war.

Wolfowitz, the commission's appointing authority, must approve any charges preferred against the accused, Borch pointed out.

"If and when Dr. Wolfowitz approves those charges, then we start the commission proceedings," Borch explained, noting that's when Gunn, as the acting chief defense counsel, will begin detailing military lawyers to serve as defense counsel for the accused.

Besides having military lawyers appointed for their defense, the accused could also choose to secure the services of civilian defense attorneys, as long as it's at no cost to the U.S. government, Gunn said.

Each commission would consist of a presiding officer, Borch remarked, who would be a commissioned officer and military lawyer. That person would evaluate admissibility of evidence and manage the proceedings. Three to seven panel members would serve, all non-lawyer commissioned officers from the armed services representing myriad career fields.

All panel members, including the presiding officer, would vote on the guilt or innocence of the accused, Borch noted. A two-thirds vote among the panels is required for guilty verdicts, according to information presented during a July 3, Pentagon background briefing on military commissions.

However, military commission cases involving the death penalty require seven panel members, Borch explained, and a unanimous vote is needed to pass down a sentence of death.

Military commissions that tried German and Japanese soldiers for war crimes were held after World War II, Borch pointed out.

Gunn asserted that he is "very confident" that commission members "will do their duty to provide full and fair trials for each detainee that's brought before (a) military commission."

Each military commission member, Borch pointed out, will be required to take an oath.

"And that oath is going to require them to be fair, be just, (and) make sure the proceedings are full and fair," he concluded.

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