Long-stalled military trials of terror suspects at Guantánamo Bay may soon restart, but debate over their fairness remains as intense as ever.
To Pentagon officials, the planned US approach is at least as fair as the international tribunals in Rwanda and Yugoslavia. In those proceedings, prosecutors can appeal not-guilty verdicts, for instance. That won't be possible in the US process.
But critics complain that the US tribunals can keep evidence secret from the accused - something that would never be tolerated in the domestic justice system. And revelations about US prisoner abuse have caused some to question the military's overall handling of detainees, including their plans for prosecutions.
"There is a lack of confidence in the people who put this together," says Stephen Saltzburg, a George Washington University law professor and director of the National Institute of Military Justice.
The spark that restarted the military tribunal machinery was a July 15 federal court ruling. The decision by a three-judge panel of the D.C. Circuit of the US Court of Appeals held that the Bush administration's plan to try some detainees in this novel fashion did not violate the Constitution, or international or military law.
The panel's reasoning: Congress authorized the president to set up whatever legal machinery he deems appropriate by voting to allow him to use "all necessary and appropriate force" to fight terrorism followingSept. 11.
Tribunals are likely to restart in 30 to 45 days, a Pentagon official told reporters. Overall, 12 Guantánamo detainees have been judged eligible for trial, said Air Force Brig. Gen. Thomas Hemingway, Pentagon legal adviser for military commissions. None is likely to face the death penalty.
General Hemingway denied that the tribunals will be kangaroo courts, and saidtheir fairness matched, and even surpassed, other proceedings - such as those of the International Criminal Court. Comparable trials of enemy combatants, such as the Nuremberg trials following World War II, occurred after victory was achieved, Hemingway pointed out. The fact that the Guantánamo tribunals will take place during ongoing conflict accounts for some of their differences from courts-martial and civilian trials, he said.
"When the enemy has been vanquished, you don't have the same national security concerns that you have when you are conducting them during an ongoing conflict," Hemingway said.
Critics complain that defendants in the tribunals can be excluded from some portions of their trial. They may also face secret evidence which they will be unable to rebut. The right to counsel of choice is severely restricted, they add, and the whole enterprise is tinged with a presumption of guilt.
Administration officials have continually referred to the detainees at Guantánamo as "thugs" and "terrorists," notes an Amnesty International report - though a handful have been released after the US deemed them no such thing.
The tribunals "would flagrantly violate international fair trial standards and result neither in justice being done nor being seen to be done," reads an Amnesty International study.