"Eight military commission instructions that the general counsel of the Department of the Defense has issued . . . were prepared as part of the process to be ready in case the President decides that it's appropriate to try any captured enemy combatants by military commission," said an official.

"The defendant in a military commission will always have a military defense counsel, a JAG (judge advocate general), who will have access to all classified information," he said.

"The civilian defense counsel may or may not have access to all classified information, depending on the level and sensitivity of the information."

Another official sought to draw a distinction between a military commission and a court martial.

"Courts martial have historically been used primarily for good order and discipline of our armed forces," he said. "Military commissions have been used for perhaps a wider variety of things.

"But in every case of a war crimes trial, violation of the laws of war, historically the United States has used military commissions... Military commissions are usually associated with times of armed conflict."

The instructions for the commissions were established a month after the September 11, 2001 terrorist attacks on New York and Washington, when Bush signed a decree on "the detention, treatment and trial of certain non-citizens in the war on terrorism."

The commissions could sit in the United States or abroad, theoretically including the US Marine base at Guantanamo where more than 650 alleged Taliban and al-Qaeda members from Afghanistan have been held since January 2002.

The military commission order and the President's military order are drafted in such a way as to capitalize on the flexibility needed because of the increased need to protect intelligence information that occurs during an armed conflict," explained an official, "and a recognition that the kinds of evidence that one might find on a battlefield is very different than the normal situation our law enforcement officers have when they're getting evidence in peacetime.

"It's tough to get a warrant for a case," he said. "So in that respect, it allows the panel members more flexibility in determining what evidence has probative value and may be admitted."

Unlike courts martial, the military tribunals would be held in public.

Officials said the rules would not apply to Iraqis arrested during the war in Iraq, except for "international terrorists captured in Iraq."

"If there were international terrorits who were captured in Iraq they also could be subject to this process," said an official.

"Al-Qaeda appears prominently in the President's military order, and to the extent that there was someone who was a member of al Qaeda, for instance, then the President's military order would apply. The President's military order wasn't drafted with Iraq in mind, and neither were these."

SPACE.WIRE