PHILADELPHIA – The White House has privately told the American Bar Association that the country's largest and most influential lawyers' group should not take a position now on the plan to try suspected terrorists before military tribunals, administration and ABA sources said Sunday.
The administration "made the request that the American Bar Association House of Delegates defer" any vote on military tribunals at the organization's meeting this week, ABA president Robert Hirshon said.
Hirshon said he told the White House that neither he nor other ABA leaders could prevent a vote. The 530 members of the policy-making House of Delegates "think their own minds," Hirshon said.
A senior administration official largely confirmed that account, although the official said there was no explicit request that the ABA pull its recommendations off the table. The administration thinks it inappropriate and premature for the ABA to take a stand before the Pentagon has finished writing rules for how the tribunals would operate, said the official, who spoke on condition of anonymity.
"They do not have the full facts," the official said.
Another senior administration official, also speaking on condition of anonymity, said the ABA had indicated it would remain silent if the Pentagon immediately would publish the rules and guarantee defendants basic legal rights.
Hirshon denied there was "any discussion of a quid pro quo," although he said he did ask the White House last week whether the rules were imminent.
"I did not initiate any contact with the White House," Hirshon said, adding: "I do not see this as an issue of who asked whom to dance."
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 courts or military courts-martial.
Lawyers and academics have led much of the criticism of tribunals, contending they are stacked against defendants and an unnecessary, perhaps unconstitutional, end run around the established court system.
The ABA's policy-making legislative body was to vote Monday or Tuesday on whether to offer any support for the idea of tribunals. Although the group's membership is divided, a compromise proposal would condition such support on a list of guarantees about the way the special terrorism courts would operate.
Congress should have a say in how tribunals operate, and tribunals should abide by the settled rules for courts-martial, including the right to appeal to the Supreme Court, the ABA proposal says. It also recommends tribunals guarantee that defendants will be presumed innocent, that guilt be proved beyond a reasonable doubt and that death sentences require a unanimous verdict.
The United States also should not do anything that would undermine the right of U.S. citizens tried abroad, the proposal says.
An order by President Bush in November asserted his authority to use military tribunals but left it to the Pentagon to detail how tribunals would work.
Lawyers at the ABA meeting said they assume the first tribunals will convene later this year to try suspected al-Qaida members overseas. The White House has said no American citizens would be prosecuted before tribunals.
An ABA terrorism study panel created after Sept. 11 gave some support to the president's plan, saying the tribunals could administer fair justice under the right circumstances. The task force report, which does not represent the policy of the entire ABA, said the Pentagon should write clear legal safeguards into its rules.
The ABA has no enforcement power, but the positions that the 408,000-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.