Congress Faces Dilemma on Terror Trials

The Supreme Court decision striking down the military tribunal system for trying accused enemy combatants at Guantanamo Bay has apparently presented the Bush administration and its allies in Congress with two choices -- both fraught with risk.

They can use the GOP majorities in the House and Senate to put a quick congressional seal of approval on something close to the existing system, but run the risk that it too will be struck down by the high court.

Or they can follow the path suggested by the court and devise a system embracing the procedural and other principles of the U.S. Uniform Code of Military Justice and the Geneva Convention, but risk the possibility that few, if any, of the alleged terrorists will be convicted.

And both choices, as well as attempts to chart a middle course, could set off the kind of protracted, internally divisive debate that the White House and GOP political strategists would not relish with the November elections approaching.

Indeed, Sen. Dianne Feinstein (D-Calif.) issued a warning Sunday: “Republicans will rue the day if they politicize this,” she told ABC’s “This Week.”

Two Republican senators -- prospective GOP presidential candidate John McCain of Arizona and Judiciary Committee Chairman Arlen Specter of Pennsylvania -- have made clear their desire to dig into the problem.

“We’re going to have to dot all the i’s and cross all the t’s on this legislation to make sure it passes muster,” Specter said Friday.

The high court’s decision has set up what may be the biggest test so far of the government’s ability to reconcile maximum anti-terrorism effort with traditional American standards of legal fairness and decency. And the test has been almost five years in the making.

Since the Sept. 11 terrorist attacks, the Bush administration and its supporters have argued that extreme measures are necessary and justified against a foe that employs extreme tactics and rejects accepted moral standards. Civil libertarians, many Democrats and now the Supreme Court have argued that the war on terrorism must be waged in a manner compatible with established legal and ethical principles.

In the case of the alleged terrorists in the U.S. prison at Guantanamo Bay in Cuba, the challenge is to devise a system that will survive later judicial review yet permit successful prosecution.

Many legal experts say that will be hard to do.

“Can you set up a tribunal that will pass what we now know to be the judicial standards the Supreme Court is going to impose? The answer is unequivocally ‘yes,’ ” said retired Rear Adm. John Hutson, a former Navy judge advocate general and the dean of Franklin Pierce Law Center.

“Is the prosecution going to be able to get convictions? I think there is a chance you won’t see any,” he said.

That’s because a trial system capable of withstanding judicial review would probably exclude much of the evidence the government has gathered on battlefields and in prison interrogation rooms.

The military code to which the court pointed as a roadmap is “a good framework for setting up tribunals,” McCain said Sunday on “This Week” -- and these legal experts agree. The Uniform Code of Military Justice mirrors many of the procedural rules of U.S. civilian courts and the bedrock principles that the court mandated last week, including the right of the defendant to be present during trial and to hear the evidence against him.

Yet experts acknowledge that one result of embracing such a system could be that few, if any, of the Guantanamo detainees whom the government has identified for trial could end up being convicted -- or even tried.

The rules created for the Pentagon’s military commissions, or tribunals, permit the introduction of secret evidence that defendants are not allowed to see, testimony obtained by coercion, and other material that would not be accepted in traditional legal systems.

Such evidence would probably be excluded under more traditional legal rules.

Moreover, such rules could compel the government to reveal now-secret information or give up prosecutions.

That prospect rankled Rep. Peter T. King (R-N.Y.), chairman of the House Homeland Security Committee.

“We can’t be turning over evidence and discovery and giving the benefit of the doubt to terrorists in these cases,” he 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.”

The Bush administration contends that it is important to have trials for detainees accused of war crimes and atrocities.

With the legislative wars over the tribunals just heating up again, however, it is far from clear what path Congress will choose. Some members are believed to be pushing for a narrow fix that some experts said would skirt the intent of the high court and avoid extending broader legal protections to the detainees.

But legal experts said lawmakers and the White House were also under pressure to come up with a legally and morally defensible system to show the world that the U.S. was serious about dispensing justice to people who had been imprisoned for nearly five years at the U.S. base in Cuba.

“It is a watershed event for Congress and the president alike. They really need to decide if they want to bite the bullet and set up a system that is fundamentally fair or if they want to play the game of setting up something that is substandard and waiting another five years for the court to decide its validity,” said Diane M. Amann, an international law expert at the UC Davis law school.

“I don’t think they are going to have a lot of leeway to depart” from the military code, she said.

The court ruled that the tribunals failed to meet the most basic of standards for fairness under U.S. and international law. Among the flaws: denying prisoners the right to attend their own trials and thus to hear the evidence against them. Under the tribunal rules, attorneys could be present, but they would not always be allowed to convey what they learned to their clients.

Another contentious point was that detainees had no right to appeal convictions to civilian courts. Some justices also said they were concerned that the crime involved in the case before the high court -- conspiracy -- was not recognized under international law.

Legal experts said some of those problems would be more easily solved than others.

Congress could amend the military code to include the crime of conspiracy. Prosecutors could also use alternative, better-established theories roughly analogous to conspiracy, such as crimes associated with “aiding and abetting” offenses.

However, extending other benchmark rights -- such as defendants’ right to be present at their trials and to hear the evidence against them -- could undercut the prosecution of detainees.

Much evidence accumulated against many detainees is based on intelligence from secret sources around the world. Officials may not want to risk a trial in which a judge might order that information be made available to the defense.

“The government’s biggest problem is that the thing they want most -- to protect the sources of their evidence and to avoid disclosing information to the defendants -- is the thing that is most important to the Supreme Court,” said Ronald W. Meister, a New York lawyer and former Navy judge advocate.

Some lawyers said there was wiggle room for defenders of the status quo.

A central part of the justices’ ruling was that the administration, in designing new procedures, was bound by a section in the military code requiring that President Bush use rules for tribunals that were close to those used in criminal courts and courts-martial.

One solution might be to eliminate that section of the law and free up Bush to impose less-demanding procedures. Such a step would probably resonate with some Republicans in Congress who have said the court has given terrorists more due process than they deserve.

But most experts said the move would defy the spirit, if not the letter, of the ruling.

“The signal that the court was giving was that the requirement of a court-martial-type proceeding is embedded both in American law and international law,” Amann said. “If Congress wants to depart from that, it is going to have to make a showing of a necessity for doing so.”

The court-martial model affords some strong rights for defendants. The rules of evidence are comparable to those in civilian courts. There is also a strong presumption of a public trial. Even the pretrial investigative stage of a court-martial is generally open.

The main point of departure with normal criminal courts is that the military gets to choose the jury.

Although there are procedures for closing trials when national security is involved, “there is a strong right that the accused be present and confront the person who is testifying against him,” said Beth Hillman, a former Air Force officer who is a professor at Rutgers University law school in Camden, N.J.

She added that the law was clear that “the only exception for denying the defendant’s presence is if he is disruptive.”

With military lawyers expressing serious national security concerns about letting defendants hear certain evidence, “I can foresee the government saying, ‘We just cannot go there. The court has signaled these people have to be present. We simply cannot allow them to be present,’ ” Hillman said.

An even bigger problem could be the handling of confessions and statements by defendants and the handling of statements that other detainees have made about defendants -- crucial evidence from the government’s viewpoint.

The military code forbids the use of statements that are obtained through “coercion” or “unlawful influence.”

Lawyers for many detainees have said that the statements their clients gave authorities were the product of abusive techniques and torture, which would make them inadmissible.

“In order to be lawful, they would have to create a process that excluded the only evidence they have against these guys,” said Joseph Margulies, a Chicago attorney who is co-counsel for one of the few Guantanamo detainees who have been formally charged. “You might be able to create a process, but there would be no evidence you could present.”

Margulies’ client is an Ethiopian picked up in Pakistan who, before being sent to Cuba, was interrogated in Morocco and allegedly confessed under torture to being a member of Al Qaeda. Razor blades were allegedly used against the man’s genitals. Margulies said such a confession could not be used as part of a legal trial.

Some experts said that if the adoption of such standards meant some detainees were not brought to justice at a formal trial, it would be a small price to pay.

“I think we gain more than we lose by adopting courtsmartial,” said Scott L. Silliman, a military law expert at Duke University law school. “If we were to adopt them, we would send a clear statement to the international community that we are still a nation under the rule of law.”