WASHINGTON (AP) ? As the Pentagon readies its first military tribunal since World War II, a Supreme Court ruling is putting pressure on the Bush administration to conduct a proceeding that more exacting civilian courts would accept as fair, legal experts say.
The Supreme Court ruled this week that nearly 600 foreign-born terror suspects captured abroad and held at the U.S. naval base at Guantanamo Bay, Cuba, could challenge their detention in American courts. The ruling suggests that military tribunals also could be questioned as unlawful in federal courts, which isn’t currently allowed.
“The president now has to act with the understanding that the court won’t simply bow down in deference to any procedure he sets up,” said David Cole, a Georgetown law professor and lawyer for the Center for Constitutional Rights. “He is subject to a more meaningful review than he might otherwise anticipate.”
Justice and Pentagon officials also are scrambling to find ways to handle the hundreds of lawsuits expected in coming weeks, including a proposal to move the detainees from Cuba to a military prison in a conservative judicial district such as South Carolina or Kansas.
Such a move would allow the government to consolidate hearings in one favorable location and avoid shuttling prisoners and lawyers to courthouses around the country, the Los Angeles Times reported in its Wednesday editions, quoting unnamed senior administration officials.
Other possibilities discussed at a meeting Tuesday include asking Congress to designate a single federal court district such as Washington D.C. or the eastern district of Virginia for the cases, or allowing detainees to file their petitions in Cuba, The Times reported.
The discussions were held as the Pentagon announced a five-member tribunal to try three suspects at Guantanamo. The trials would be the first for any of the prisoners swept up after the Sept. 11 attacks and the first tribunal convened by the United States in nearly 60 years.
“This is an important first step,” said Air Force Maj. John Smith, a lawyer who helped draft the tribunal rules. “We’d like to have a case tried by the end of the year.”
The first to be tried will be David Hicks of Australia, Ali Hamza Ahmed Sulayman al Bahlul of Yemen and Ibrahim Ahmed Mahmoud al Qosi of Sudan ? the only detainees charged to date, and three of only four allowed access to lawyers.
The three men have been charged with conspiracy to commit war crimes and other offenses. They could face up to life in prison if convicted, the Pentagon has said previously, ruling out death sentences for the three.
Hicks, a 28-year-old convert to Islam, is accused of training at al-Qaida camps and taking up arms against U.S.-led forces in Afghanistan. Charges include war crimes conspiracy, attempted murder and aiding the enemy. His lawyers say he will plead innocent.
The military has charged al Qosi and al Bahlul with war crimes conspiracy, saying al Qosi was an al-Qaida accountant and bin Laden bodyguard and al Bahlul was a bin Laden bodyguard and propagandist for al-Qaida.
The presiding officer of the tribunal was identified as Retired Army Col. Peter E. Brownback III, who is being recalled to active duty. Brownback has 22 years of experience as a judge advocate and nearly 10 years of experience as a military judge, the statement said.
It said the remaining panel members are two U.S. Marine Corps colonels, an Air Force colonel and an Air Force lieutenant colonel, but did not identify them by name.
Military tribunals are reserved for foreign-born captives and have looser standards for prosecution than in U.S. criminal trials. Hearsay evidence such as rumor may be used, and prosecutors typically have a lower burden for proving guilt than “beyond a reasonable doubt.” Some of the evidence also might be withheld from the defendant ? but not the military judges ? if the information is deemed classified.
The Supreme Court’s decision doesn’t spell out in what way a tribunal could be found unlawful, leaving it in part to creative lawyers and the lower courts to thrash out. One suit filed in Seattle before the court decision argues that President Bush didn’t have Congress’ authority when he issued the military order shortly after Sept. 11, 2001, establishing the use of tribunals.
Defense lawyers also have criticized the military tribunal process as stacked against them. Last week, Britain’s attorney general said military tribunals were unacceptable because they would not provide a fair trial by international standards.
Some law professors said the potential litigation could influence how the Pentagon proceeds with its prosecutions, although it likely will be seen in discretionary decision-making such as how much classified evidence is used and who is prosecuted rather than wholesale changes in procedure.
A Pentagon spokesman, Maj. Michael Shavers, on Tuesday said the department was reviewing the ruling but didn’t expect it to affect the military tribunals or the administrative review of the prisoners’ detentions.
Scott Silliman, a Duke University law professor and former Air Force attorney, said Bush’s order probably wouldn’t change.
“The question is whether this is a president who will change things on the fear he might lose in court,” Silliman said. “I think the track record says no.”
Source: http://www.mlive.com/newsflash/lateststories/index.ssf?/base/politics-4/1088554544192980.xml