Tribunal Bill Sets Up an Ironic Legal Limbo

WASHINGTON —  The bill that Congress approved Friday to bring terrorism suspects to trial contains a central irony: The suspects considered most dangerous will have the most rights, while the others will remain in legal limbo with no ability to challenge their detention.

The government plans to try about 100 of the detainees being held at Guantanamo Bay, Cuba -- those suspected of the most serious crimes against the United States. These prisoners, and any others charged, would be able to appeal convictions to the U.S. courts.

The other 355 detainees, who are considered less of a threat, may never be tried and may therefore be denied the right to challenge their imprisonment.

“It leaves them with no protection. You can put someone down there and never bring charges against them and leave them in that status forever,” said retired Rear Adm. Don Guter, a former Navy judge advocate general.

The tribunal legislation also raises the prospect for the first time that foreigners in the United States could be declared “enemy combatants” and sent to Guantanamo, according to defense lawyers and advocacy groups.

Under the legislation, “enemy combatants” are defined to include not only people who have engaged in hostilities against the U.S. but people who have “purposefully and materially supported” hostilities.

The definition, which “certainly goes far beyond the battlefield, will include people who never took up arms or planned attacks, and will include people who simply gave money,” said Chris Anders, a legislative counsel with the American Civil Liberties Union. “It greatly expands the number of people who can have their habeas rights stripped and potentially be brought before military commissions.”

The tribunal bill officially strips prisoners of the right to challenge their detention under a writ of habeas corpus.

The legislation, which President Bush plans to sign soon, will set up the nation’s first system for trying terrorism suspects. It is expected to face court challenges from detainees’ lawyers.

U.S. officials plan to try 14 terrorism suspects who were secretly held by the CIA until recently, and 10 other detainees have been charged.

Officials are seeking, with mixed success, to send others swept up in the war in Afghanistan back to their homelands.

Administration officials say they have no intention of indefinitely holding people without charge and are working to clear detainees they do not intend to try. “We would like it to be less than 100 in Guantanamo,” said a Pentagon official.

Although detainees could begin to be charged in the fall, the Defense Department needs at least a month to develop additional rules for the new military commissions. Defense lawyers said they did not expect the trials to begin before February.

The Justice Department has begun identifying federal prosecutors who could assist in the trials before the commissions. Under the statute, the Defense Department will be permitted to designate nonmilitary trial counsel.

Soon after Bush signs the measure into law, Justice Department lawyers are expected to request court dismissal of petitions challenging the confinement of hundreds of Guantanamo detainees.

The State Department has been working to send most of those detainees home, but it has run into trouble with the three countries where most are citizens: Afghanistan does not have the prisons to hold them, Yemen has not assured the U.S. they won’t be tortured, and Saudi Arabia worries that they could destabilize the ruling regime.

“Anyone who was picked up wrongly we have either sent back home or are trying to send back,” said an administration official.

Congressional negotiators said there was never any intention that everyone in Guantanamo would be tried.

“The idea was the guys we have the goods on, let’s try, and the guys we don’t, let’s do something else with them,” said a congressional aide involved in the negotiations.

Defense lawyers question what “something else” might be. Some wondered what would happen if home countries refused to take the detainees back but the U.S. lacked enough evidence to try them.

“The detainee who isn’t charged with anything, he sits forever,” said Army Maj. Tom Fleener, a military defense lawyer. “It is an absurd twist.”

Besides the 100 or so detainees to be tried, defense and other administration officials say, any other Al Qaeda members or other international terrorists whom the U.S. captures could also be sent before a commission.

The officials say the system is not meant to try unlawful combatants in Iraq or Afghanistan who have attacked American troops.

Marine Maj. Michael Mori, who represents Guantanamo detainee David Hicks of Australia, says that just shows how the new tribunal system is more political than judicial.

“We are releasing people who have been shooting at American forces,” Mori said. “There are people who have been shooting at Americans in Iraq and Afghanistan; why aren’t they being tried? Because this isn’t meant to be a real system.”

Although the Pentagon says it does not intend to prosecute people captured in Iraq or the majority of detainees in Guantanamo, critics said the bill is written very broadly, in a way that would allow the military to prosecute any non-American suspected of being an enemy combatant.

“The justice system they created is so open they could try thousands and thousands of people,” Fleener said. “Practically, though, I hope it’s only a handful.”

The congressional aide involved in the bill negotiations said the broad definition was necessary to ensure that Salim Ahmed Hamdan, Osama bin Laden’s driver, could be charged under the law, as well as detainees accused of having made bombs to be used against U.S. troops.

A senior administration official disputed the idea that the definition in the law was overly broad and said that just because someone could be tried did not mean the person would be.

“The only people who will be tried will be people who have committed a crime,” said the official.

But giving uncharged detainees the right to challenge their detention, the official said, would clog the courts with combatants legitimately captured on the battlefield. Instead, military judges are to periodically review their cases and status.

“In a normal war, people do not have a right to challenge their detention,” the official said. “But we acknowledge this war is different, and we are giving them appropriate access to the courts.”

Legal experts were divided on whether the restriction violated detainees’ rights. The Supreme Court held in a 1950 case, Johnson vs. Eisentrager, that foreigners charged by a military commission had no constitutional right to challenge their confinement in civilian courts.

Though the situation of the Guantanamo detainees is different -- they were picked up during an unconventional war and are afforded few rights by the status review boards -- the current Supreme Court may be disinclined to depart from the precedent.

“The attorneys are going to have to go in and persuade a court that Eisentrager is either different in context or should be reinterpreted or overruled,” said Scott Silliman, an expert in military law at Duke University law school. “I won’t say that is an easy challenge. I think it is going to be a difficult challenge.”

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(BEGIN TEXT OF INFOBOX)

Tribunal system

The military commissions to be used to try terrorism suspects differ in significant ways from the civilian courts.

* Detainees will have no right to file a writ of habeas corpus in U.S. courts to challenge their detention as unlawful.

* Suspects will have no right to a speedy trial.

* Tribunals will be able to consider evidence that is obtained through coercion, though not through torture.

* Hearsay evidence will be allowed.

* Verdicts will be delivered not by juries, but by members of the armed services presided over by a military lawyer.

Source: Military Commissions Act of 2006