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Critics: Military trial of terror suspects could open cases to legal uncertainty

By Carrie Johnson
Washington Post Staff Writer
Sunday, March 14, 2010; A02

Using a military commission to try Khalid Sheikh Mohammed and his co-defendants for their alleged role in the Sept. 11 attacks could open the case to significant legal uncertainty and expose fresh details of detainee abuse in a proceeding that might not get underway for two years or longer, national security experts and plan critics say.

The heated political battle over where Mohammed will face U.S.-style justice continues to simmer as President Obama's legal advisers consider their options. But in the face of resistance from authorities in New York, Virginia and Pennsylvania for a civilian trial, a military case looms as the most likely prospect, White House advisers have said.

Lost in the rhetorical firefight have been the drawbacks of such an approach in a military system that resolved only three cases during the Bush years, one with a guilty plea.

For legal and practical reasons, Attorney General Eric H. Holder Jr. still favors a federal trial in civilian courts, aides say. But Senate Republicans are attacking Holder as a symbol of administration missteps on national security, and the attorney general's voice does not carry as loudly in the halls of the White House.

This week, in advance of Holder's next oversight appearance on Capitol Hill, human rights groups led by the Constitution Project are bringing more than a dozen former judges, prosecutors and diplomats to Washington to advocate for terrorism trials in the regular court system.

Other critics of military commissions are speaking up as well.

Eugene R. Fidell, president of the National Institute of Military Justice, said in an interview that the civilian courts are the best venue. "Military commissions are antithetical to the administration of justice," Fidell said. "They're slow, they're opaque, the rules are currently unknown." During the Bush years, the commission system ran into legal trouble at the Supreme Court. But its supporters say that the military courts are on a firmer, fairer path because of reforms lawmakers passed last year. New protections for classified information are in place, and judges can close the courtroom easier, for example.

Sen. Lindsey O. Graham (R-S.C.), who said he is trying to reach a deal with the White House to return Mohammed and others to the military courts, is perhaps the idea's most fervent supporter in Congress.

"It is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," Graham said last month. "It has never been done in the history of warfare, and now is not the time to start." Yet the nature of the military legal system leaves open several of the same critical questions about such a trial.

Among them: It is unclear what, if any, constitutional rights would be triggered if Mohammed and his four co-defendants were moved onto U.S. soil for a military trial. There is little, if any, case law to guide the judges' decisions on defendants' challenges to their mental competency, their allegations that they have not been afforded a speedy trial and their ability to confront witnesses.

A U.S. District judge in New York is considering the speedy-trial issue in the case of the sole detainee who has been moved onto U.S. soil for civilian trial, Ahmad Khalfan Ghailani. He resides in the Metropolitan Correctional Center in Manhattan.

Evidentiary issues in the cases present the most vexing problem in either venue, legal experts say.

Military prosecutors are likely to rely on statements the defendants made to an FBI team that arrived after more questionable interrogations had taken place as proof of the alleged plotters' criminal intent. Assistant U.S. attorneys working in the civilian courts have developed a larger body of sensitive evidence, which they might not be willing to use in a military proceeding because of concerns about the legal standards there.

One of the most fraught legacies of the Bush years is the issue of detainee mistreatment that could taint confessions and accounts from informers about other prisoners. Supporters of the military system say they have resolved problems with alleged torture by ensuring that fresh FBI interrogation teams got new, "clean" confessions from detainees.

But in January, senior U.S. District Judge Thomas F. Hogan excluded nearly two dozen interrogation summaries in the case of an al-Qaeda-linked suspect who was challenging his detention. The suspect had been interrogated in Afghanistan and later questioned by a "clean team" in Guantanamo Bay, Cuba. Hogan said the reports were "not reliable" and questioned whether enough time had passed between interviews for the man, Musa'ab Omar al-Madhwani, to have recovered from physical and psychological mistreatment.

The Military Commissions Act permits hearsay evidence. But a 2004 Supreme Court decision written by Justice Antonin Scalia strengthened a defendant's right to confront witnesses under the Sixth Amendment. Whether that right would come into play if detainees are tried in the United States is an untested issue, national security lawyers said, and it could throw into question whether prosecutors can introduce written statements from other detainees. An unpublished opinion by David Barron, acting chief of the Justice Department unit that advises the executive branch, has concluded that it is unlikely the U.S. Constitution would apply to detainees tried in Guantanamo but would probably apply if the suspects are moved onto American soil.

It remains unclear where Mohammed might be tried: a military base, or a facility in Thompson, Ill., that the Obama administration says could take at least two years to upgrade. In a Feb. 11 interview with The Washington Post, Holder said his decision to use civilian courts was guided by "what's best for the case, where can we bring the strongest case, bring into court the evidence we can rely on, minimize the use of evidence we don't want to have presented."

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