The Defense Department has selected Frank J. Williams to play a role in the military trials of Guantanamo Bay detainees.

08:27 AM EST on Wednesday, December 31, 2003

BY EDWARD FITZPATRICK
Journal Staff Writer

The chief justice of Rhode Island's Supreme Court, Frank J. Williams, will be part of a military panel that will hear appeals by suspected terrorists held at Guantanamo Bay, Cuba.

None of the 660 detainees held at Guantanamo Bay Naval Station has been charged, and although the Pentagon has not said when it expects to begin military trials, the first is expected soon. It would be the United States' first use of military tribunals since World War II.

Defense Secretary Donald H. Rumsfeld yesterday selected retired Army Maj. Gen. John D. Altenburg Jr. to serve as the so-called appointing authority for the military tribunals.

Altenburg will be the top official responsible for approving any charges against those individuals President Bush wants tried.

Rumsfeld appointed Williams and three others to the review panel, which will hear appeals of cases decided by the military tribunals.

"I'm honored to do it," Williams said. "I consider it my patriotic duty as an American to answer the call."

Members of the review panel will serve two-year terms, but Williams said the work will be intermittent and will not interfere with his duties on the state's high court.

"I'm not giving up my day job," he said, comparing the commitment to that of an inactive Army reservist.

Williams said he wrote to the Department of Defense, offering to help, about a year and a half ago, after he read a New York Times article about the Defense Department's preparations for military tribunals and a review panel.

As a nationally known Abraham Lincoln scholar, as a former U.S. Army captain and as a judge, he said, "I thought I was uniquely qualified to assist if they could use me." He said he made it clear the work would have to be "consistent with my duties as chief justice."

Rhode Island Supreme Court chief justice Frank J. Williams

Panel members will be commissioned as Army major generals during their terms. "This old captain is getting promoted after 36 years," said Williams, who was in the Army from 1962-67, serving in Germany and Vietnam.

The status and plight of the captives have sparked outrage from civil-liberties groups, foreign governments and federal appellate courts. Most of the prisoners have been held in legal limbo for two years -- without access to legal counsel and without being formally charged.

The Pentagon has refused to brand them prisoners of war, which would require that the United States honor the Geneva Convention on the treatment of prisoners.

When asked about the open-ended nature of the detentions, Williams said he could not share his thoughts because "these may be issues that come before the review panel."

But Williams, who has written or edited more than a dozen books on Lincoln, said he will bring a historical perspective to the panel.

"Military commissions have been around since the Revolutionary War, but the vast majority were during the Civil War, when they had over 4,200," he said. "Lincoln authorized them as commander in chief, just as President Bush has authorized them through the secretary of defense."

Williams said he does not know when the review panel will begin its work, or whether he will be paid. "I'm not doing this for the money," he said. If there is pay, he said, "I may eschew the salary or give it to the State of Rhode Island."

Williams, 63, of Richmond, was a Superior Court judge from December 1995 to February 2001, when former Gov. Lincoln C. Almond appointed him chief justice of the Supreme Court.

On the review panel, Williams will not be serving as a trial judge. Rather, he will hear appeals, as the Supreme Court does. "It's the same duties I have as a judge now -- to be fair and impartial," he said.

The others named to review panel are:

Griffin B. Bell, the former U.S. attorney general in the Carter administration and former U.S. circuit judge for the U.S. Court of Appeals for the Fifth Circuit.

Edward G. Biester, a Court of Common Pleas judge in Bucks County, Pa. He is a former Pennsylvania attorney general and former member of the U.S. House of Representatives.

William T. Coleman Jr., a former secretary of transportation.

One or more additional review-panel members may be named later, officials said. Review-panel members will select from among themselves the three members who will serve on a specific case.

The new panel has highly limited authority to overrule any tribunal if it finds serious errors of law.

If the review panel finds that a "material error of law" occurred, it will return the case for further proceedings, including dismissal of charges, according to the Department of Defense. The panel also may make recommendations to the secretary of defense on the cases, including sentencing matters.

"Except as necessary to safeguard protected information, written opinions of the review panel will be published," the Department of Defense stated.

Top defense officials said the decision to appoint leading civilian legal figures would bring credibility to a closed military system. The "experience and independence" of the appellate panel "should go a long way to allaying some of the criticism that's been made so far," said a senior defense official, who conducted a briefing on condition of anonymity.

Several military-law experts said the decision may enhance the credibility of military trials, but it still leaves questions about whether judicial review will be independent.

"These are highly qualified nominees, and this is about as independent as you can get, given this framework," said Eugene Fidell, who heads the nonpartisan National Institute of Military Justice.

But Fidell and others questioned whether that adds up to genuine judicial review. Unlike courts-martial, military trials will not be subject to review in civilian federal courts.

"This will quiet some critics, but a panel of newly minted major generals is not an independent court," said Elizabeth Hillman, a former Air Force officer and professor at Rutgers University School of Law.

Altenburg, who was an Army lawyer for 28 years, will serve in a civilian capacity as "appointing authority" for the military tribunals. He takes over for Deputy Defense Secretary Paul Wolfowitz, who had been overseeing the tribunal process.

A senior Defense Department official who spoke on condition of anonymity said yesterday the replacement of Wolfowitz, a lightning rod of administration critics opposed to the war in Iraq, had always been contemplated.

"There was never any intention that the deputy secretary of defense would serve on a permanent basis," the official told reporters. "Now the military-commission process needs to be managed on a day-to-day basis by someone like John Altenburg, who can devote his full attention to the matter."

The Pentagon also announced that Air Force Brig. Gen. Thomas L. Hemingway will be Altenburg's legal adviser. Hemingway retired from the Air Force in 1996 and was recalled to active duty last summer. He has served as a staff judge advocate at several levels in the Air Force, and was a senior judge on the Air Force Court of Military Review as well as director of the Air Force Judiciary.

In a related move, the Defense Department's top lawyer, William J. Haynes II, issued Military Commission Instruction No. 9, spelling out the procedures for appeals of tribunal decisions.

The steps announced by the Pentagon yesterday were the last major procedural steps planned before one or more of the terror suspects held at Guantanamo Bay is charged and brought to trial.

Material from the Associated Press, Hearst Newspapers and Knight Ridder Newspapers was included in the report.