Military lawyers criticize tribunal

By PAMELA HESS, Pentagon correspondent

WASHINGTON, Jan. 15 (UPI) -- Five U.S. military lawyers assigned to defend prisoners captured in Afghanistan in a newly created military tribunal filed a sharply worded "friend of the court" brief with the U.S. Supreme Court Wednesday, arguing against the tribunal's legitimacy, the detainees inability to appeal to a U.S. civilian court and the Bush administration's attempt to have the judicial branched "usurped."

The director of the National Institute of Military Justice, an organization that tracks and analyses military justice issues, called the brief a "watershed" event for the American military's legal community.


"I don't know of any case in which uniformed defense counsel have participated in friend of the court brief in a civilian court other than the court of appeals for U.S. military justice," said Eugene Fidell.

The 30-page brief pulls no punches in its criticism of the legal issues surrounding the more than 600 detainees being held at Guantanamo Bay Naval Base, ostensibly outside the reach of civilian courts.


"If there is no right to civilian review, the government is free to conduct sham trials and condemn to death those who do nothing more than pray to Allah," the brief states.

If the Bush administration's treatment of the prisoners is not challenged by the Supreme Court "the government is free to label virtually any person on the globe an enemy alien and deprive recourse to the civilian court."

The Supreme Court agreed to hear the "habeas corpus" case, Al Odah v U.S., in November. The case is expected to be argued this month.

Habeas corpus cases address whether the government has a legal right to detain a person. The Al Odah case is expected to determine whether the Guantanamo prisoners may be tried without the right to an appeal in a U.S. civilian court. The tribunal has a mechanism for review using both military and civilan judges -- deputized into the military for the purpose -- but it is still outside the established civilian legal system.

The Bush administration has argued that the special nature of the war on terrorism and the fact that the prisoners are held not on sovereign U.S. territory means it does not have to observe the requirements of the U.S. Constitution or the customs of international law.


The lawyers argue grave consequences if the administration lawyers are not reigned in.

"The (U.S.) Constitution cannot be contorted into this senseless position without doing grave damage to the rule of law," the legal team wrote. "Concerns that the executive has usurped the function of the judiciary are at the highest when the executive seeks to deny access to a right as fundamental as habeas corpus.

"This right is part of our constitutional bulwark against tyranny," the brief states, quoting the Federalist Papers.

The brief notes that only once before did a sovereign attempt to do what the Bush administration and Pentagon is doing with the Guantanamo prisoners. That was in 1660, when a military commander attempted to move prisoners to an island off England to escape the reach of the courts. That maneuver was used against him in impeachment hearings, and actually became the basis for the writ of habeas corpus in England and ultimately the United States.

"It's a powerful brief," said Fidell. "I think uniformed lawyers are going to be applauding this whether or not they agree with it, because it demonstrates the skill and energy of these lawyers ... and their independence."

Military commission spokesman Air Force Maj. John Smith said the lawyers "absolutely will not" suffer any professional consequences for the amicus brief.


"They asked if it would be OK to file it and we told them to check with their ethics advisers. From our perspective we absolutely expected it. It wasn't a surprise at all."

Smith said the brief is in keeping with the strong tradition of vigorous independence by military defense lawyers.

The brief does not question the right of the military to detainment the prisoners but rather the legal apparatus constructed to handle them.

"The fact that the President entered wearing his military garb cannot obscure the fact he is now pursuing a different goal -- assessing guilt and meting out retrospective justice rather than waging war," the brief states.

None of the detainees has been formally charged, none have had habeas corpus hearings, and just one -- Australian David Hicks -- has had access to his lawyer, Smith told UPI Thursday. A second detainee is expected to meet with his attorney soon.

Six have been identified as candidates to face the military tribunal proceeding, which was created specifically to try prisoners caught in the "global war on terror." The military lawyers say there is no direct precedent in the case because the government "has never before consciously created a trial process, courtroom and other accoutrements of judicial process outside the battlefield and housed them all in an area calculated to divest civilian jurisdiction."


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