WASHINGTON — Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay. Now, under orders by President Obama, he could one day be among detainees whose fate is finally decided by a U.S. court.
But in a potential problem, Pentagon officials note that most of the evidence against Jawad comes from his own admissions. And neither he nor any other detainee at the U.S. prison at Guantanamo Bay, Cuba, was ever told about their rights against self-incrimination under U.S. law.
The Miranda warning, a fixture of American jurisprudence and staple of television cop shows, may also be one of a series of constructional hurdles standing between Obama's order to close the island prison and court trials on the mainland.
A procession of similar challenges -- secret evidence, information from foreign spy services and coerced statements -- also could spell trouble for prosecutors.
All of these problems illustrate the larger difficulty that lies ahead as the nation moves from the "law of war" orientation used by the Bush administration in dealing with detainees to the civilian legal approach preferred by Obama.
Obama last month announced sweeping changes, ordered humane treatment and invited in the international Red Cross. But the changeover will not be easy or quick, underscoring the complexity of undoing the Bush administration's policies.
John D. Hutson, a former chief judge advocate general of the Navy who advised the Obama transition team, said the new administration simply has not decided on rules to detain and try terrorism suspects -- those at Guantanamo now, or those captured in the future.
"It's still up in the air," Hutson said, "to the consternation of some of the human rights groups."
The administration has launched a review of the individual detainee cases, aimed at determining who can be prosecuted in federal courts.
"Miranda is an issue -- it is a potential issue in prosecution," said a senior Obama administration official, speaking on condition of anonymity because the review is ongoing. "The purpose of the review is to see how much of an issue and to see in what cases it is possible to proceed."
The administration is also reviewing whether the controversial military commission system instituted by President George W. Bush should be retained in some form for detainees who cannot be tried because of Miranda or other legal hurdles.
