Democratic vice presidential nominee John Edwards said yesterday that a John F. Kerry administration would scrap the military commissions created by President Bush to try suspected al Qaeda and Taliban fighters detained at Guantanamo Bay, Cuba, and would instead establish a new system modeled on military courts-martial.
"The Bush administration has ignored the model of the military courts-martial. We will use that model as a basis for future trials of detainees," Edwards said in a statement e-mailed in response to a question posed to him over the weekend. "We will ensure that this process, from the quality of translators to the treatment of evidence to the selection of judges, is handled with the seriousness and competence that is essential for such sensitive national security cases."
Although the Pentagon would still run the system, the Kerry campaign said that using the template of a long-established process would put it on firmer legal ground.
Kerry's approach would mark a break with procedures established by Bush nearly three years ago to prosecute some of the hundreds of men seized after the U.S. invasion of Afghanistan and held in the U.S. military prison at Guantanamo Bay. The administration said the commissions, last used to try Nazi saboteurs nearly 60 years ago, would allow the government to use a blend of secret and public hearings.
Critics have charged that the commission rules favor the government, and that, among other things, they allow hearsay evidence and permit exculpatory evidence to remain secret from defendants. Last week, when the commissions formally began for four defendants, defense lawyers -- many of whom are military officers -- repeatedly challenged the legitimacy of the commissions, their rules and procedures, and the fitness of the judges.
The lengthy detentions of suspects have also riled U.S. allies. The administration denied suspects access to lawyers or U.S. courts, but the Supreme Court ruled in June that Guantanamo Bay prisoners have the right to challenge their detentions in U.S. courts.
"In dealing with detainees, our first question should always be a simple one: 'What should we do to keep America safe?' " Edwards said. "The Bush administration unfortunately has asked a different question, 'How much power can we possibly exercise?' They tried to set up Guantanamo Bay as a legal black hole, subject to neither courts nor laws."
Under Bush's system, appeals will go to a panel selected by the same government official who helped establish the commissions -- Defense Secretary Donald H. Rumsfeld. By shifting to a court-martial approach, Kerry would have appeals handled by a court of appeals for the armed forces, which is independent of prosecutors and the Defense Department. The appeals process, like most other procedures in a military trial, is almost identical to that of a civilian trial.
"After nearly three years of unnecessary and harmful controversy, the Bush administration is scrambling to provide hearings for detainees, and in a few instances, trials by military commission," Edwards said. "But the military's own lawyers have harshly criticized these ad hoc commissions for violating the principles that our great system of military justice has long honored."
Terry Holt, a Bush campaign spokesman, responded that "politics won't dictate what happens at Guantanamo. John Kerry should not play politics with the system of justice in place to deal with terrorist suspects."
Edwards, calling the Bush approach "self-defeating and self-destructive," pledged that Kerry would hold a "comprehensive review" of the Guantanamo detentions upon taking office. "We will establish these clear rules quickly," he said, adding that Kerry would also "engage Congress as much as possible."