Failed Terror Trials Raise New Questions
by ANNE FLAHERTY
The Associated Press
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| Salim Ahmed Hamdan is seen in this undated file photo provided by Prof. Neal Katyal. Military judges dismissed charges Monday June 4, 2007 against Hamdan, a Guantanamo detainee accused of chauffeuring Osama bin Laden, throwing up roadblocks to the Bush administration’s attempt to try terror suspects in military courts. (AP Photo/photo courtesy of Prof. Neal Katyal) |
Failed attempts to charge two terror suspects left the Pentagon scrambling Tuesday to determine a next step and emboldened Democrats who said the rulings exposed a flawed court system.
Military judges ruled Monday that the Pentagon could not prosecute Salim Ahmed Hamdan and Omar Khadr because they had not first been identified as “unlawful” enemy combatants, as required by a law passed last year by Congress.
Hamdan, of Yemen, is believed to have been chauffeur to al-Qaida leader Osama bin Laden. Khadr is a Canadian who was arrested at 15 on an Afghan battlefield, accused of killing a U. S. soldier.
The decision dealt a blow to the Bush administration in its efforts to begin prosecuting dozens of detainees regarded as the nation’s most dangerous terrorist suspects.
U. S. officials chalked up the ruling to semantics and said they were considering their options.
“We certainly disagree with the ruling,” said White House spokeswoman Dana Perino on Tuesday. The Defense Department “is looking at the opportunities for appeal, and what they would say.”
Lawmakers and legal experts agreed the decision was not necessarily a showstopper for the trials, and that new legislation might not be necessary to convict Hamdan and Khadr. Democratic critics, however, said the ruling proved the current law was shabbily written.
Last year, Republicans and the White House pushed through legislation authorizing the war-crimes trials after the Supreme Court threw out President Bush’s previous system as illegal and in violation of international treaties.
Bush established the specialized tribunal system shortly after the Sept. 11, 2001, attacks but had not been able to convict any terrorists because of legal hurdles. After the law passed, the administration convicted Australian David Hicks, who pleaded guilty in March to providing material support to al-Qaida. He is serving a nine-month sentence in Australia.
“Five-and-a-half years later, we find what happens with that kind of arrogant, go-it-alone attitude even conservative courts say ‘no,’” said Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.
Leahy, D-Vt., and other Democrats have drafted legislation that would address various aspects of the law they say is unfair or unconstitutional.
On Thursday, Leahy’s panel is expected to pass a bill that would allow detainees to protest their detentions in federal court; the law passed last year specifically stripped federal courts of their ability to hear habeas corpus challenges. The measure is likely to be offered as an amendment to a $649 billion defense policy bill on the Senate floor later this month.
Co-sponsors of the Judiciary bill include Sen. Arlen Specter, the top Republican on the Judiciary Committee, and Democratic presidential hopefuls: Sens. Hillary Rodham Clinton of New York, Barack Obama of Illinois, Christopher Dodd of Connecticut and Joe Biden of Delaware.
“The current system of prosecuting enemy combatants is not only inefficient and ineffective, it is also hurting America’s moral standing in the world and corroding the foundation of freedom upon which our nation was built,” said Dodd, who also has a separate proposal that would make more sweeping changes.
The defense policy bill, drafted by Sen. Carl Levin, D-Mich., and approved by the Senate Armed Services Committee, is already on track to grant new rights to terror suspects held at Guantanamo Bay, including access to a lawyer regardless of whether the prisoners are put on trial. The bill also would narrow the definition of an enemy combatant and tighten restrictions on the types of evidence used to keep a person detained.
Sen. Dianne Feinstein, D-Calif., a member of the Judiciary Committee, said she wants to go farther to close Guantanamo Bay prison altogether. The prison holds some 380 military detainees suspected of terrorism.
Republicans are expected to oppose most of the Democratic proposals, particularly Leahy’s attempt to restore habeas corpus rights for detainees.
Sen. Lindsey Graham, who helped write the law being used to prosecute detainees, said he thought Monday’s ruling showed the process was working. (?????))
“In the rule of law, words matter,” said Graham, R-S. C., referring to the distinction made by the judges that the detainees must be specifically deemed “unlawful” before being subjected to the military commission. “Lawful” enemy combatants are entitled to prisoner of war status under the Geneva Conventions.
“The best thing we can do is let the legal community work this out before we try to jump in,” said Graham, a member of the Armed Services and Judiciary committees.
Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, said Tuesday the prosecution is considering its options, which include filing an appeal, and noted that the court of military commissions review would be the “appropriate venue for the appeals process.”
One hurdle, however, is that the review court does not exist yet, said Marine Col. Dwight Sullivan, chief of military defense attorneys at Guantanamo Bay.
Another hurdle is sentiment in Congress that Democrats were not involved in helping create the trials and that the law was hastily written. Then there’s the administration’s patience in general.
“The only way this will spell the end of the military commissions is if this is the straw that breaks the camel’s back,” said Gregory S. McNeal, a law professor at Pennsylvania State University. “In other words, it only means the end if this is the final delay which forces the executive branch to reconsider their whole policy. I don’t believe that is likely.”
Associated Press writer Michael Warren in Mexico City contributed to this report.
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