12Jan04-John Mintz-Military Lawyers Question Tribunal Rules
In Supreme Court Brief, Detainees' Defenders Say Constitution Requires Civilian Review
By John Mintz
Washington Post Staff Writer
Tuesday, January 13, 2004; Page A07
Five military lawyers assigned to defend detainees at Guantanamo Bay are planning to tell the U.S. Supreme Court that some of the rules drawn up for special military trials are unconstitutional.
In a friend-of-the-court brief to be filed this week, the military defense lawyers will assert that prisoners convicted in such military tribunals should have the right to appeal to civilian courts, not just the military appeals panels envisioned by President Bush.
"The Constitution cannot countenance an open-ended presidential power, with no civilian review whatsoever, to try anyone the president deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself," according to the legal brief, which the lawyers said will be filed with the Supreme Court on Wednesday.
The court papers will be filed in connection with lawsuits brought by the families of 16 inmates at the U.S. Navy's Guantanamo Bay, Cuba, prison camp, who are seeking to have the detentions reviewed by civilian courts. The Supreme Court has agreed to hear their arguments.
This is the first time active duty members of the U.S. military have publicly embraced a criticism of the military tribunal process espoused by Washington's critics around the world. It is unusual but not unprecedented for military lawyers to mount such pointed challenges of U.S. government policy, legal experts said. In the past, military lawyers have filed legal challenges to other Pentagon policies, such as those allowing random urinalysis tests of troops and the "don't ask, don't tell" rules on gays in uniform.
One of the five military lawyers filing the brief, Navy Lt. Cmdr. Charles Swift, who is assigned to represent a Yemeni inmate at Guantanamo Bay named Salim Ahmed Hamdan, said that by taking the step he is meeting his obligations as both a defense attorney and a military officer.
"I bear responsibilities to protect my client's rights, and as a naval officer to support and defend the U.S. Constitution," Swift said in an interview yesterday. "I think I do both here."
The five defense attorneys requested and received permission to file the brief from the Pentagon general counsel's office, said Neal Katyal, a professor at Georgetown University's law school and an adviser to the defense lawyers. The Supreme Court need not issue a ruling on arguments contained in a friend-of-the-court brief, which is filed in support of positions taken by one side in a lawsuit.
Pentagon officials declined to comment on the brief yesterday, saying they had not seen it. But they said the legal effort demonstrates that the detainees' attorneys are being allowed to press the prisoners' rights aggressively.
"We've been saying all along that these defense lawyers are supposed to go out and zealously defend their clients," said Maj. Michael Shavers, a Defense Department spokesman.
The brief contends that the denial of civilian appeals of military tribunal convictions gives the president "monarchical" powers, and that tribunal defendants would be thrown into a legal "black hole [where they] may not contest the jurisdiction, competency or even the constitutionality of the military tribunals."
Swift said that his and his colleagues' stance on the legal issues is "in the middle," halfway between the positions of the U.S. government and the private lawyers representing the 16 Guantanamo Bay detainees.
Lawyers for the 16 prisoners say the U.S. government has no right to detain the approximately 680 inmates without holding hearings in federal court. The U.S. government contends, however, that U.S. courts have no standing to inquire into its jailing of the enemy prisoners at Guantanamo Bay.
The brief by the five military lawyers does not question the president's right to hold detainees captured in the war on terrorism, even without providing them court dates. But it does object to the idea that detainees could be tried before military tribunals, and possibly put to death, without recourse to civilian judges.
"They express extreme deference to the president's war-fighting power," said Katyal, who worked on national security issues at the Justice Department under President Bill Clinton. "But they say when the president enters a law enforcement zone [and files criminal charges against wartime detainees] , then a different set of rules apply."
Last month, the military announced the appointment of several members of an appeals panel who would review tribunal convictions after being commissioned as Army generals. They include Griffin B. Bell, attorney general under President Jimmy Carter, and former transportation secretary William T. Coleman Jr.
The Supreme Court case -- filed by detainee families from Kuwait, Britain and Australia -- is scheduled for argument in the spring.
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