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CNN Live At Daybreak

Interview of Barry Pollack, Criminal Defense Attorney

Aired November 15, 2001 - 06:40   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CATHERINE CALLAWAY, CNN ANCHOR: Some civil rights advocates say that they are disturbed by a military order that was signed this week by President Bush. It gives him the option to try suspected terrorists in military court, in effect, bypassing the constitutional protections offered under criminal proceedings.

Criminal defense attorney, Barry Pollack, is joining us now live from Washington this morning to help us understand what all this might mean. We did hear Vice President Dick Cheney say that terrorists -- quote -- "Do not deserve the same guarantees and safeguards as the American judicial system has." Do you agree with that?

BARRY POLLACK, CRIMINAL DEFENSE ATTORNEY: Well, I think it's true to a point. The courts have always held that non-citizens do not have the same constitutional rights as citizens. With that being said, I think there are some real questions about whether or not these military tribunals are, in fact, permissible when Congress has not declared war.

CALLAWAY: Technically, they have not declared war, but under approval by Congress, doesn't the president still have the power to do what he's done?

POLLACK: I don't think it's at all clear that he does. There's very limited precedent for military tribunals in this country, and when it has happened in the past, it has happened when we have been in a state of war, and Congress, in declaring war, has specifically established the military tribunals. I believe it's unprecedented for the president to single-handedly establish such tribunals.

CALLAWAY: Let's give people an idea of just exactly how a military tribunal would work, and how it differs from, say, a civilian court. It could be in secret. It could take place on a U.S. ship, only a two-thirds majority. What other changes would be included in a military tribunal versus a civilian court?

POLLACK: Well, we don't know entirely, at this point, because not all of the rules have been established. What we do know is, in addition to all of the things that you just cited, there also would be no appeals from this court, other than to the president himself, or the secretary of state in his stead. There would be no appeal to any appellate court, as there typically is in the federal criminal system.

CALLAWAY: Let's talk about how this could be done in secret. How could that be done without the U.S. not having to tell us exactly what took place in a military tribunal?

POLLACK: Well, there is nothing in the president's order that calls for the trial to be public. Now, in our federal criminal system, defendants are guaranteed a public trial, and of course, the media is guaranteed access to trials. And I think that's one of the real question marks as to whether or not the procedure that's been envisioned by the president is, in fact, permissible.

And I think, while the president would like those kinds of issues to be resolved in the military tribunal itself, in the past, the courts have said that they have the opportunity to review the procedures employed by the military tribunal, and they would decide whether or not the procedures employed violate the fundamental rights of the defendants that go before the tribunal.

CALLAWAY: You know, Barry, when you hear the word tribunal, you can't help but think of Milosevic in connection with the Bosnian conflict. Why was not that -- why did that not take place in that incident?

POLLACK: Well, those were international courts that were established by the U.N. specifically for the purpose of those crimes, and the participating countries agreed to the jurisdiction of that international court.

Obviously, here, we don't have anything like that established. It appears to be the preference of President Bush not to deal with an international court, but to try these individuals in American military tribunals.

CALLAWAY: You know, we mentioned a few minutes ago some of the differences between this and a civilian court. Talk about some of the areas, where this could take place. It does not have to be held in the U.S. It could be held, actually, in Afghanistan.

POLLACK: It could be help absolutely anywhere. The order specifically says it can be in the United States, it can be outside of the United States. Any time that any of these individuals come into the custody of the Department of the Defense, so into any branch of the military, a military tribunal could be set up under the president's order.

CALLAWAY: But isn't the whole point of this trying to keep the terrorists out of the U.S., to try them in Afghanistan, or perhaps, as I said, even on a U.S. ship, rather than bring them back here to the U.S.?

POLLACK: Well, I don't think that even under the present federal system, that there is a requirement that the person be tried back in the United States. If the person is tried on American territory, be that at an American embassy, be that at an American military facility, I think that some arrangement could be made for that.

So, I'm not sure that this is really about where the trial takes place. It's about what kind of trial the individuals will receive. CALLAWAY: Mr. Pollack, you're obviously uncomfortable with the whole idea of the military tribunal. What would make you feel better about it?

POLLACK: Well, I think, first of all, we have to wait and see what rules are going to be established. There are a lot of question marks left. For example, under our federal system, you cannot be found guilty unless there's proof beyond a reasonable doubt. We don't know under the military tribunals if that standard will be employed, or a much lesser standard will be employed.

Also, I'm very uncomfortable with the idea that a person could be sentenced to death with one-third of the panel disagreeing with that decision. Obviously, in our system, you need the unanimous decision for the death penalty. That won't be true under this military panel.

CALLAWAY: All right, Barry Pollack -- thank you for joining us this morning.

POLLACK: Thank you.

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