- The Washington Times - Thursday, June 29, 2006

The Supreme Court’s ruling on Guantanamo Bay does not directly affect the prison’s future, but it will force the Pentagon to come up with a new game plan for bringing to trial people captured in Afghanistan on suspicion of war crimes.

Legal analysts said the White House may ask Congress to put the military commission procedure, which the court struck down yesterday, into federal law, likely with new guarantees and rights for defendants. The new law would bring commissions in line with the 1949 Geneva Conventions, which the court said the current rules violated in the case of Guantanamo detainee Salim Ahmed Hamdan.

But another route exists. The military may try the al Qaeda and Taliban detainees in a ready-made system — courts-martial, with full rights under the Uniform Code of Military Justice.

“If they charge him with [war crimes], as they have done, all they have to do is convene a court-martial and follow the rules of the manual for courts-martial,” said Charles Gittins, a prominent defense lawyer who specializes in military cases. “They should have been doing this from the beginning. We had a well-functioning mechanism that could have done the job.”

A Pentagon spokesman said yesterday that the Defense Department and the Justice Department were studying the opinion before making a statement.

The administration focused on what the Supreme Court, in its 5-3 decision, did not do. It did not order the prison closed or the prisoners released. Nor did it change their status from enemy combatant, as designated by President Bush, to prisoner of war, a status sought by human rights groups.

Only 10 of about 450 detainees at the prison in Cuba have been formally charged. There is nothing in the Supreme Court’s decision that says the remaining 440 must be charged or released. Mr. Gittins said that decision would be settled in other court cases.

The ruling also does not stop the administration’s practice of holding senior al Qaeda terrorists, such as Khalid Shaikh Mohammed, the main architect of the September 11 attacks, on foreign lands without giving them access to the courts.

“So long as they don’t try him by military commissions, this ruling has no effect on persons like Khalid Shaikh Mohammed,” Mr. Gittins said.

What the Supreme Court edict does do is force the Pentagon to adopt a whole new procedure for trying detainees. Even if Congress does approve military tribunals, Mr. Gittins said the tribunals would have to be redesigned to afford the rights that courts-martial provide.

At courts-martial, defendants will get far more rights than they would have under the tribunal system, which is why Mr. Bush chose the more secretive commissions in the first place.

Unlike commissions, the manual for courts-martial will entitle defendants to pretrial evidentiary hearings in which the government must prove its case to justify the charges; defense attorneys will have wider power to summon witnesses and they will be able to cross-examine prosecution witnesses. Under the commission system, prosecutors could have submitted statements from persons with no defense cross-examination, Mr. Gittins said.

Defendants will be entitled to a military judge to preside, instead of a hearing officer, and will have a jury of at least five American military officers, as opposed to a commission panel of officers.

The prosecution in commission tribunals can evict defense attorneys and defendants during the presentation of classified material. Courts-martial have procedures to allow the defense to stay in the courtroom.

Rep. Duncan Hunter, California Republican and House Armed Services Committee chairman, said his panel will seek testimony from legal specialists on how to remedy the court’s decision.

“Let’s make one thing clear,” Mr. Hunter said. “This decision does not release a single terrorist currently held in United States custody — either at Guantanamo Bay or abroad. We will work with our colleagues in the Senate and the Executive Branch to design appropriate procedures to try terrorists guilty of war crimes.”

The court said the commission system violated the section of the Third Geneva Convention, which requires those held on the battlefield to be adjudicated in a regular judicial system of the host country. It said military commissions were a special system created just for al Qaeda and Taliban suspects.

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