Will the Supreme Court shackle new tribunal law?
President Bush's signature Tuesday is likely to set off legal tests.
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The thinking was that if the Supreme Court endorsed such a system as a constitutional alternative to habeas corpus review for US citizens in the Hamdi case, the same system should provide more than enough due process to noncitizen enemy combatants being held at Guantánamo.Skip to next paragraph
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If Kennedy agrees with this position, the Military Commissions Act would probably survive its most serious legal challenge. But Kennedy's stance on this issue is unclear.
Lawyers for Guantánamo detainees say that Combat Status Review Tribunals (CSRT) fall far short of the fair procedures required in the Hamdi case. "They are a sham," says Thomas Wilner, one of the lead Guantánamo defense lawyers who won the Rasul case and is continuing to litigate related issues at the federal appeals court in Washington. "They did not give what Hamdi said you have to give – the minimal basic due process requirement."
The requirement includes that a detainee receive prior notice of all accusations being made against him and a fair opportunity to confront those charges before a neutral decisionmaker.
When the evidence is classified, a declassified summary doesn't always provide enough information to enable a detainee to defend himself, defense lawyers say.
In one CSRT hearing, the detainee was accused of associating with a known Al Qaeda operative in Bosnia.
"Give me his name," the detainee said.
The tribunal president said he didn't know the name.
"How can I respond to this?" the detainee asked.
"Did you know of anybody who was a member of Al Qaeda?" the tribunal president asked.
The detainee added, "This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was.... If you tell me the name, then I can respond and defend myself against this accusation."
Defense lawyers say that unlike previous wars, most of the US detainees at Guantánamo Bay weren't captured by US soldiers on a battlefield. Many were "sold" to the Americans by Pakistanis and Afghans seeking payment of US bounties for Al Qaeda members even when their Al Qaeda involvement was less than clear. Defense lawyers say this is why there may be a significant number of innocent detainees among those being held at Guantánamo.
This is complicated by the widely held assumption that most bona fide Al Qaeda members will falsely insist during hearings that they are innocent goatherders or hapless students rather than holy warriors.
•Establishes special rules for military-commission trials for Al Qaeda suspects accused of committing war crimes. The rules permit the exclusion of a defendant from his trial if classified evidence is being presented, and the admission of hearsay and coerced statements as evidence.
•Authorizes a three-officer military panel to determine a detainee's status as an enemy combatant eligible for indefinite detention in US custody. This is in lieu of the ability to file a habeas corpus petition challenging the legality of the detention in federal court.
•Creates a retroactive legal defense for US personnel who engaged in harsh interrogation tactics from September 2001 to December 2005. Also narrows the range of activities that might constitute a violation of Common Article 3 of the Geneva Conventions outlawing torture and cruel treatment.
•Expands the definition of an unlawful enemy combatant to provide that anyone who offers "material support" to someone engaged in hostilities against the US can be held indefinitely in military detention, regardless of whether he or she actually engaged in hostilities. Also provides that only noncitizens held as unlawful enemy combatants may be tried by a military commission.