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Resumed Guantanamo Bay military panels face new challenges
Murphy said that 60 to 70 detainees could be prosecuted in military commissions, but that some of those cases will go to federal court and some, in the end, may not go to trial at all. The administration is expected to make a series of announcements in coming weeks about which prisoners will be prosecuted, and where, and how it will institute a system of indefinite detention for those deemed too dangerous to release but who cannot be prosecuted.
Qosi is a Sudanese man accused of acting as a bodyguard and driver for Osama bin Laden and other members of al-Qaeda. His hearing this week was a prelude to what is likely to be an ongoing debate about the legitimacy of new commissions. Civil liberties and human rights groups argue that they are a forum for cases in which the government has less evidence or evidence that would not stand up in federal court, citing, in particular, looser hearsay rules than in federal court and the ability, in some circumstances, to introduce evidence derived through coercion.
"It was designed to make punishment inevitable," Lawrence Martin, one of Qosi's civilian attorneys, said in court this week.
Qosi's lawyers filed a series of motions arguing that the commissions were unconstitutional because they placed defendants on the lower rung of a two-tier system of justice.
Navy Cmdr. Suzanne Lachelier, his military attorney, said the government's decision to keep Qosi in a military tribunal while sending other alleged al-Qaeda suspects to federal court was "irrational." Lachelier also represents Ramzi Binalshibh, who is accused of helping to organize the Sept. 11 attacks. Binalshibh is being sent to Manhattan for trial.
Organizations such as the American Civil Liberties Union have vowed to continue to challenge the commissions in federal court.
But government lawyers said that the tribunal system is a legitimate wartime tool, and that it has proved more sympathetic to defendants than any federal jury probably would. Murphy noted that in an earlier case, he asked for 30 years for Salim Ahmed Hamdan, a bin Laden driver, but the man effectively got only six months from a military jury, and is now back in Yemen.
"I believe the commissions are fair and will produce justice," said Murphy, a former federal prosecutor. "I believe that war presents facts that require the legal system to reflect the reality of the battlefield. . . . The rules of evidence that we operate under strike a balance between a wartime environment in which evidence is collected and yet offering protections to the accused that are far greater than we have offered enemy combatants in any other conflict in our history."