U.S. finishing list of crimes that tribunals could use for terror suspects

Friday, February 28th 2003, 12:00 am

By: News On 6

WASHINGTON (AP) _ The Pentagon on Friday released a draft list of two dozen crimes, including terrorism, rape and using poisons, which could be used when prosecuting terrorism suspects before military tribunals.

The Defense Department is seeking public comments on the proposal before finalizing the list of crimes within the next few weeks, Pentagon officials said.

The list includes the elements of each crime military prosecutors would have to prove beyond a reasonable doubt for a defendant to be found guilty by a military tribunal. The crimes on the list were chosen because they met internationally recognized definitions of war crimes which could be prosecuted under such tribunals, according to two Pentagon legal experts who discussed the rules with reporters on the condition of anonymity.

President Bush approved the use of special military commissions after the Sept. 11 attacks with the aim of putting alleged terrorists on trial faster and in greater secrecy than ordinary criminal courts. It will be up to Bush to say who will be brought to such trials and he has not yet decided on the first defendant, officials said.

The crimes include:

_ Terrorism, defined as killing or hurting people or attacking property in an attempt ``to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government.''

_ Rape during the course of an armed conflict.

_ ``Employing poison or analogous weapons,'' which would cover the use of chemical weapons or biological toxins.

_ Using civilian people or property to shield ``a military objective'' from attack.

_ Killing or attacking civilians.

_ Taking hostages.

_ Hijacking.

Thousands of Taliban and al-Qaida fighters have been captured by Afghan and U.S. forces in the war in Afghanistan and other terrorism suspects have been captured around the world.

The U.S. military holds some 650 men at the naval base at Guantanamo Bay in Cuba, though officials have said many were just foot soldiers and not of the stature of those who will be tried.

The Pentagon has begun releasing some of them without charges after concluding they are no longer a danger and of no further use for intelligence gathering, after more than a year of interrogations.

The most important terrorism suspects are being held in secret locations.

In addition to the detainees in Cuba and elsewhere, the administration may consider sending the case of Zacarias Moussaoui to a military tribunal.

Moussaoui, a French citizen, is the lone U.S. defendant charged with conspiring with the Sept. 11 attackers. His trial judge in Alexandria, Va. has ruled he should have access to a captured lieutenant of Osama bin Laden, Ramzi Binalshibh, a decision the government opposes and is appealing.

If the decision is not overturned, the administration could decide to transfer the case, preferring secret testimony before a tribunal rather than public testimony in a civilian courtroom.

The Pentagon lawyers said they and other government and outside experts studied international laws and treaties governing war crimes, which number in the dozens, to identify crimes for which the suspects could be tried.

``Membership crimes'' _ making joining al-Qaida a crime in itself _ are not on the list. But the list includes another seven ``related offenses'' that allow prosecution of people not directly involved in a crime. Those related offenses include conspiracy, aiding or abetting, attempting, soliciting or ordering any of the 24 direct crimes on the list.

More than a year ago, the Pentagon announced rules under which the tribunals would operate. They are to offer defendants many of the same rights as in regular U.S. trials _ they would be presumed innocent, given attorneys and convicted only if the evidence were beyond a reasonable doubt.

But the rules also limit many rights. To keep the cases out of federal courts, for example, defendants would have a very restricted right of appeal to a special review panel made up of one military official and two outside experts deputized by Bush. Defendants could not appeal to a lower federal court or directly to the Supreme Court.

Defendants also might not be allowed to hear the evidence against them if it was classified, although their military-appointed defense attorney could. And the tribunals could be closed to the public if the presiding officer decided evidence was classified or sensitive, or to prevent threats to the safety of trial participants.