Philadelphia The nation's largest lawyers' group defied the Bush administration Monday, recommending Congress have a say in establishing any military tribunals used to try terrorists and that defendants be given extensive legal protections.
Military tribunals should guarantee that defendants are presumed innocent and must be proved guilty beyond a reasonable doubt, the American Bar Assn. declared. A death sentence should require a unanimous verdict.
The vote on the floor of the ABA's policy-making legislature was 286-147 in favor of attaching those and other conditions to the use of tribunals. The vote means the ABA, though not contesting President Bush's power to use tribunals, insists the special terror courts be used only in limited circumstances, and under established legal and constitutional rules.
Bush's broad announcement in November that the United States might use tribunals to try suspected terrorists did not spell out exactly how they would operate, nor who would be tried there. The Pentagon is nearly finished writing those rules.
The White House and other administration officials lobbied the ABA not to take a position, calling it premature to do so before the rules are released.
Solicitor General Theodore Olson asked the ABA legislature Monday to "first do no harm." The list of conditions is too rigid, and could tie the president's hands as the United States fights a changing war on terror, Olson said.
The administration needs "our support and the flexibility to respond to circumstances we are still attempting to comprehend," Olson said.
ABA leaders applauded Olson, whose wife, Barbara, died aboard the jetliner that hit the Pentagon on Sept. 11, but went on to reject his request. The vote puts the full 408,000-lawyer organization behind the thrust of preliminary recommendations released last month and sent to the Pentagon for review.
Tribunals have not been used in the United States since World War II. They generally provide fewer legal and constitutional guarantees for defendants, and can operate with greater secrecy than ordinary civilian or military courts.
Lawyers and academics have led much of the criticism of tribunals, contending they are stacked against defendants and represent an unnecessary, perhaps unconstitutional, end run around the established court system.
With Monday's vote, the ABA recommends that tribunals follow the settled rules for military courts-martial, including the right to appeal to the Supreme Court.
The United States also should not do anything that would undermine the right of U.S. citizens tried abroad, the proposal says.
Lawyers at the ABA meeting said they assume the first tribunals will convene overseas later this year to try suspected members of the al-Qaida terrorist network. The White House has said no American citizens would be prosecuted before tribunals.
The ABA has no enforcement power, but the positions the member organization adopts traditionally have carried great weight in Washington.
The ABA has crossed swords with the Bush White House before, however, and the administration has signaled it does not court the group's endorsements.