In a federal courthouse a block away from the White House, a special appeals court for Guantanamo detainees met for the first time this week.
The U.S. Court of Military Commission Review heard arguments in the case of Omar Khadr, a Canadian national who was captured in Afghanistan in 2002 for allegedly killing a U.S. soldier. The panel of three military judges must decide whether the discrepancies between the wording in a new terrorism law and its actual practice are enough to derail the Defense Department's effort to launch its first terrorism trials.
"This is about the credibility of the U.S. and the perception at home and abroad of our commitment to the rule of law," Lt. Commander William Kuebler told reporters outside the courthouse. Keubler is leading Khadr's defense and, as he sees it, the Bush administration is creating a legal system for the Guantanamo prisoners on the fly.
"We are designing a process after the fact to convict people we have already basically determined are guilty," he said. "And that is an absolute affront to the rule of law."
The problem is largely one of semantics. When Congress passed a law setting up tribunals for some Guantanamo detainees, it said the only people who could be brought up on charges were those deemed "unlawful enemy combatants." The problem is that Guantanamo Bay uses a different term when it designates prisoners: it says simply "enemy combatants," without the word "unlawful" attached.
That distinction is the basis of Khadr's appeal. The government argues that if a suspect is a member of al Qaida, which Khadr allegedly was, then the "unlawful" part is understood.
"If the trial goes forward, won't that automatically be satisfying the unlawful enemy combatant requirement, if all five charges are proven beyond a reasonable doubt?" asked Francis Gilligan, a retired colonel who is one of the government's lawyers. "My answer to the judges was yes it would."
All of this back-and-forth about who can be brought up on charges is part of the growing pains of a new system. The new military commissions are supposed to end up deciding the fates of about 80 detainees, including the so-called "high value" prisoners like Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001, attacks.
Civil liberties advocates say the trials are a sham. The head of the government's office of prosecution, Mo Davis, said detainees were getting the same due process as soldiers facing court martial.
"If these rules and judges are good enough for members of the U.S. armed forces, then it is good enough for these trials," he said. "We have nothing to be ashamed of in this process. This isn't a kangaroo court."
What is certain is that building a judicial system from the ground up isn't an easy proposition. It will take some time to see whether detainees end up with a fair trial or something that falls short of that. The judges did not indicate when they might make a decision on the Khadr case.
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