Tribunals seen as only way to try terrorists

Despite new legal setbacks, the Pentagon is likely to press ahead with plans for military war-crimes trials at Guantanamo Bay, Cuba, because they offer the only way to prosecute the terrorists who planned the Sept. 11 attacks, say military lawyers and legal analysts who support the Bush administration’s efforts.

“This process has to go on because there is no alternative, at least for trying the high-values,” said a legal advisor to the military commissions, who spoke about the so-called high-value detainees on condition of anonymity because the Bush administration has not decided how to proceed with terrorism trials.

Two impending trials were dealt a surprise setback Monday by military judges who said the government had bungled by failing to categorize the detainees as “unlawful” enemy combatants.

The setback represented another embarrassment for a troubled and untested system that since 2002 has been widely condemned as a makeshift process that has detained hundreds without charges, trials or hope of release. However, experts and analysts said the Bush administration would have to fix the system if it hoped to hold criminal trials for the handful of high-level terrorist suspects held there, including Khalid Sheikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks.

The Pentagon said Mohammed had confessed to a string of crimes and plots, including the Sept. 11 attacks and the beheading of Wall Street Journal reporter Daniel Pearl in 2002. Mohammed, a deputy to Osama bin Laden, was captured by U.S. agents in Pakistan four years ago and was held and questioned in secret CIA prisons. For that reason, much of his confession and other evidence against him probably would be excluded if he were tried before a standard U.S. court, legal experts said.

“These people cannot be convicted in the criminal justice system,” said Washington lawyer David B. Rivkin Jr., who served in the Reagan and George H.W. Bush administrations. “There would be insurmountable problems.”

A military tribunal offers the only practical way to try and convict terrorists, including the planners of the Sept. 11 attacks, agreed Pepperdine law professor Douglas W. Kmiec.

In an ordinary criminal court, “much of the evidence will be inadmissible, and convictions will be unattainable,” said Kmiec, a former Reagan administration attorney.

“These people were captured on a battlefield, and a battlefield is different from a crime scene,” he said. “That is one reason to maintain the military tribunals.”

However, the system set up by the Bush administration has been dogged by legal challenges and adverse rulings, including those handed down by military judges Monday. Ironically, the Monday rulings had their roots in previous repairs to the system.

Three years ago, under pressure from the Supreme Court, Pentagon authorities set up a screening system to confirm that the detained men were enemy fighters -- and not civilians who ended up there by mistake. These three-member panels were called Combatant Status Review Tribunals.

During 2004 and 2005, they held hundreds of hearings and labeled nearly all the inmates “enemy combatants.” But when Congress passed the Military Commissions Act last year, it authorized trials for “unlawful alien enemy combatants.”

The difference in wording turned out to be crucial. On Monday, judges halted the pending trials of the first two defendants, Salim Ahmed Hamdan, a former driver for Bin Laden, and Omar Khadr, a Canadian who was 15 when he was arrested after a firefight with U.S. troops in Afghanistan. Neither had been formally labeled an “unlawful” enemy combatant, even though it was obvious they had not been soldiers in uniform.

The status review panels “didn’t ask the right question,” said Scott Silliman, a Duke University law professor who advised the congressional officials who drafted the Military Commissions Act.

Silliman and other lawyers said the rulings reflected a technical glitch that the Pentagon could easily fix. Prosecutors could appeal the ruling to a special appeals court, or they could reconvene status review boards for those detainees who may face trial by military commission. Officials said another option would be to administratively redesignate the enemy combatants as unlawful enemy combatants, even though the rulings Monday said individual reassessments should be made.

Although it may be logistically possible, an effort to fix the latest problem could encounter political obstacles.

What may be the first congressional effort to revise the Military Commissions Act faces a vote today before the Senate Judiciary Committee. The measure, co-sponsored by Sens. Arlen Specter (R-Pa.) and Patrick J. Leahy (D-Vt.), the committee chairman, would grant all Guantanamo prisoners habeas corpus rights to challenge their detention in federal courts.

Another Democrat on the committee, Sen. Dianne Feinstein of California, has said she would want to close the Guantanamo detention and trial operation altogether.

Defense Secretary Robert M. Gates has said he would prefer closing the prison and canceled a controversial expansion project there. But Gates, returning today from overseas, has said he planned to review the rulings.

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david.savage@latimes.com

carol.williams@latimes.com