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Congress Faces Dilemma on Terror Trials

They could back Bush and risk the court's rebuke. Or they could alter rules and lose cases.

July 03, 2006|Richard B. Schmitt | Times Staff Writer

WASHINGTON — 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.

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