How Guantanamo Detainees May Have Their Day in Court

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Talk of using courts-martial to try terrorism suspects conjures up images of no-nonsense military officers meting out swift and severe punishment, but some attorneys contend that, contrary to popular perception, the American military justice system is more friendly to defendants than are the civilian courts.

“The Uniform Code of Military Justice is at least as protective, if not more protective, of defendants,” a law professor at Pepperdine University in California, Douglas Kmiec, said.

The idea of using that code to try prisoners in the war on terror was pushed to the forefront by the Supreme Court, which touted the option last week as it invalidated President Bush’s plans for war on terror military commissions.

Courts-martial rarely see the attention devoted to civilian courts, but with Congress set to begin hearings next week on responding to the Supreme Court’s decision in Hamdan v. Rumsfeld, lawmakers, the press, and the public are about to get a crash course on the niceties of the military justice system.

“There are a number of people who swear up and down that it’s a better system than the civilian system,” the president of the National Institute for Military Justice, Eugene Fidell, said. He said he views those claims as exaggerated, but added, “There are aspects that are better.”

All defendants in courts-martial get a military defense lawyer, or in the most serious cases, two attorneys, at government expense. The lawyers are often of a higher caliber than public defenders and are appointed even for defendants who have funds to hire a private attorney.

Defense attorneys are also entitled to participate and call witnesses at a so-called Article 32 hearing, where a military judge determines if probable cause exists to bind a defendant over for trial. “It goes way beyond a federal criminal case,” Mr. Fidell said.

The system also respects the complexities of policing a far-flung community. Many military defense lawyers tell tales of being flown thousands of miles to remote outposts to interview potential witnesses.

Some lawmakers have already indicated that they believe the court-martial process is too lenient for terrorism suspects. “We can’t be turning over evidence and discovery and giving, you know, the benefit of the doubt to terrorists in these cases,” Rep. Peter King, a Republican of Long Island, said Sunday on CNN’s “Late Edition.” “This is different from other wars. This is not like capturing uniformed soldiers in World War II or the Korean War or even Vietnam.”

Mr. Kmiec, a Justice Department official under President Reagan, predicted havoc if the American military’s legal rules were applied to alleged Al Qaeda members who have been detained and interrogated for years at Guantanamo Bay. “You have all of the usual Miranda protections,” Mr. Kmiec said, referring to the 1966 Supreme Court decision requiring that suspects be told of their right to remain silent. “None of these people have been Mirandized.”

A former judge advocate general of the Navy, John Hutson, said the difficulties of trying war-crimes suspects in the military system were being overstated. “That is overblown rhetoric that is intended to undermine the concept so you go back to military commissions,” he said. “Nobody suggests that the UCMJ as they are presently written are adequate or appropriate. There’s no question that there would have to be modifications to it to accommodate the circumstances.”

Mr. Hutson, the dean of the Franklin Pierce Law Center in New Hampshire, said rules about the chain of custody of evidence are among those that would have to be adjusted. “The Federal Rules of evidence didn’t come down from Mount Sinai on granite tablets,” he said.

Mr. Fidell, an attorney who regularly defends American service members in military courts, said the use of coerced confessions is unnecessary and could undermine the credibility of any tribunal. “You don’t need a confession to prosecute someone who has thrown a grenade at you,” he said. “I think assertions like that need to be taken with a large grain of salt.”

Senator McCain, a Republican of Arizona, said he favors using the American military’s legal rules as a basis for terrorism tribunals, with some adjustments. “I think that it shouldn’t be exactly the same as applied to a member of the military, but it’s a good framework,” he told ABC’s “This Week.”

Mr. Bush said he wants to work with Congress on new legislation to deal with Guantanamo war-crimes suspects, but he has not made clear whether he wants lawmakers to ratify the administration’s previous rules for military commissions or adopt new ones.

On Monday, the White House press secretary, Tony Snow, equivocated when asked by reporters if Mr. Bush would send war-crimes suspects to courts-martial. “He may, but they’re examining all options to figure out the best and most appropriate ways to do it,” Mr. Snow said.

In a briefing organized by the Justice Department last week, a senior administration official suggested that the strictures of a court martial were not ideal for handling terrorism suspects.

“Certainly, Congress and others could look at the procedures for courts-martial and determine that practicalities require different procedures for military commissions in the current conflict,” the official said, speaking on condition of anonymity.

While Congress seems to be in a rush to act, there is no obvious reason why war-crimes trials are needed for the Guantanamo prisoners at all. “The rationale for trials has, if anything, eroded over time,” Mr. Fidell said.

The Supreme Court has upheld the military’s authority to detain prisoners captured on the battlefield for as long as the fight with Al Qaeda continues. Much of the impetus for war-crimes trials came from the international community, but Mr. Fidell said that pressure might be better met now by improving the Combatant Status Review Tribunals, which are assigned to determine who should remain at Guantanamo.

“To have more confidence in that would be extremely desirable, instead of the Rube Goldberg system we have now,” he said.


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