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Imploding Terror Cases

September 28, 2004

Saddam Hussein is getting fairer legal treatment than the U.S. citizens whom the Bush administration has deemed "enemy combatants." After all, he has a lawyer to represent him in his war-crimes trial -- a whole legal team, in fact. Also, charges have been filed against him, and he has already faced a judge. That's more than alleged dirty-bomb plotter Jose Padilla can say.

Even some Bush administration officials now acknowledge that the strong-arm tactics they adopted three years ago to catch and prosecute terror suspects have backfired. Last week, conceding it had no case, the government simply released Yaser Esam Hamdi, an American citizen, rather than obey the U.S. Supreme Court's order that he be allowed to challenge his long imprisonment. The government's case against a Syrian-born U.S. airman accused of spying collapsed last week as well, and even Pentagon officials now admit that the military tribunals that began last month are so flawed they tarnish U.S. credibility.

Although George W. Bush famously admits to no mistakes in his terror policy, the need for changes is obvious and was so even before the Supreme Court required it.

Hamdi, captured in Afghanistan after the Sept. 11 attacks, and Padilla are the two American citizens deemed so dangerous they were declared enemy combatants. For more than two years, Hamdi was locked away in a military brig, much of that time in solitary confinement. Pentagon officials permitted neither Hamdi nor Padilla to meet with a lawyer or with family members, arguing that doing so might threaten national security.

Although no charges were filed against either man, neither has been able to contest his open-ended detention.

Under the deal announced last week, Hamdi will renounce his citizenship, agree to travel restrictions and promise not to sue Uncle Sam for any injuries he sustained while confined. In return, he faces no criminal charges, and he is scheduled to fly back to his family in Saudi Arabia today.

Padilla still sits behind bars, but there seems little question that when the Supreme Court considers his case, the justices will not be amused by the administration's antics. Government lawyers will then face the same choice they did with Hamdi -- if they don't have enough evidence to prosecute Padilla, they'll have to let him go.

The government's case against Senior Airman Ahmad Al Halabi ended last week much like Hamdi's, with a whimper.

In July 2003, the military arrested Al Halabi, an Air Force interpreter at the Guantanamo detention facility, on multiple spying charges, some that carried the death penalty. But last week, acknowledging that the case didn't hold water, the military dropped the most serious charges and waived jail time beyond the 295 days Al Halabi had already served. In return, Al Halabi pleaded guilty to "minor infractions" like mishandling classified documents and agreed to a bad-conduct discharge.

His is the third overcharged spying case to collapse. In March, military officials dropped charges against an Army Muslim chaplain, and last week they tossed out a case against an Army reservist.

More surprising perhaps than either Hamdi's release or the imploding spy cases is growing concern within the Pentagon that the military tribunals planned for Guantanamo detainees look like the kangaroo courts many feared they would be.

The administration could have chosen the time-tested court-martial system for the 600 or so terror suspects, or directed they be tried in federal criminal courts. Instead, it chartered these ad hoc tribunals. Yet after the first tumultuous and confused panel hearings last month, even some Pentagon officials agree there must be changes if they are to be credible.

The problems couldn't be more fundamental: Tribunal members, unlike court-martial panel members, serve as both judge and jury. But because only the presiding officer has any knowledge of the law, the other members defer to him, giving him disproportionate influence. Most of the military officers on the five-member panel have personal conflicts that render them far from impartial. Moreover, unlike court-martial proceedings, there is no appeal from the tribunal's judgment to an independent judiciary.

Facing a barrage of motions from military defense lawyers as well as continuing criticism from domestic and foreign human rights advocates, Pentagon officials now say that when the tribunals resume in December, substantial changes will be in place.

A far better decision would be to abandon these makeshift tribunals altogether.

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