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Resumed military panels face new challenges

By Peter Finn
Washington Post Staff Writer
Friday, December 4, 2009

GUANTANAMO BAY, CUBA -- Military commissions at Guantanamo Bay, which President Obama suspended amid much fanfare immediately after taking office, quietly resumed this week with new signs of the legal complexities of the cases and the challenges for prosecutors.

The military court had to grapple with determining where a defendant, Ibrahim Ahmed Mahmoud al Qosi -- and by extension other detainees -- stand under the new military commissions law enacted in October to provide more due process for detainees.

Under the old system, Qosi and other detainees were called "unlawful enemy combatants," but the new law refers to them as "alien unprivileged enemy belligerents," a moniker that military prosecutors said is more in line with the Geneva Conventions. The government said it wanted to amend the charges against Qosi to reflect the new language, but his defense attorneys argued that a separate court hearing was necessary.

The military judge agreed Thursday, and set a hearing for Jan. 6. One military prosecutor feared it could become a "mini-trial" in itself, adding to the government's burden in that case and others.

The restart of tribunals shows the hard choices the Obama administration is facing in pursuing prosecution of Guantanamo Bay detainees. While moving some to federal court, evidence rules have forced the administration to keep some cases before military commissions, which the president had criticized during his campaign. That has opened military prosecutors to complaints from human rights groups and defense lawyers about the fairness of decisions determining in which court detainees should be tried.

Officials said military commissions will be held at Guantanamo Bay past the January date Obama set for closing the military prison, and tribunals are likely to continue for years at whatever location is ultimately chosen in the United States -- a place some in the military here are already referring to as "Gitmo North."

The administration decided earlier this year that it would preserve commissions and use them in conjunction with federal criminal trials to prosecute some detainees held at Guantanamo Bay.

Attorney General Eric H. Holder Jr. announced last month that five men accused of organizing the attacks of Sept. 11, 2001, would be transferred to federal court in New York but five others would remain in military commissions, including Qosi.

Military prosecutors said dozens of the 211 detainees who remain at Guantanamo Bay could yet be brought before commissions, potentially including capital cases that would entail lengthy and complex litigation.

"Will there be a moment when the commissions have ended?" Navy Capt. John F. Murphy, the chief military prosecutor, said in an interview. "Yes, but it could very well be years from now."

Already, Holder has said that Abd al-Rahim al-Nashiri, an alleged planner of the attack on the USS Cole in Yemen, will be tried in a military commission. The prosecution is expected to bring new capital charges in 2010, opening proceedings against him at Guantanamo Bay.

His case, and others, probably will move to a state prison in Illinois that the federal government is eyeing as the site of both military commissions and a facility to hold some detainees in prolonged detention under the laws of war. But government officials said it could be late next year before the maximum-security prison on the border with Iowa is ready to hold trials and prisoners of war.

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."

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