Detainee Appeals Court Hears First Case

The new U.S. Court of Military Commission Appeals has heard arguments in its first case. Guantanamo detainee Omar Khadr was captured in Afghanistan in 2002 for allegedly killing a U.S. soldier. A semantic dispute over the term "unlawful" is at the heart of the debate.

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A panel of three military judges that will rule on a key provision of a new terrorism law heard its first case this week. The U.S. Court of Military Commission Review heard arguments on the case of Omar Khadr, a Canadian national who was captured in Afghanistan in 2002 for allegedly killing a U.S. soldier.

The panel is being asked to decide whether the discrepancies between the wording in the new terror law and its actual practice are now to derail the Defense Department's first terror trials.

NPR's Dina Temple-Raston reports.

DINA TEMPLE-RASTON: Something unusual happened in a federal courthouse just a block from the White House. A special appeals court set up for Guantanamo detainees met for the first time. Meeting with reporters in the courthouse steps on a blistering Washington August afternoon, Lieutenant Commander William Kuebler said the stakes in the case could not be higher.

Lieutenant Commander WILLIAM KUEBLER (United States Navy Judge Advocate General's Corps): This is about credibility of the United States and the perception, both at home and abroad, of our commitment to the rule of law.

TEMPLE-RASTON: Kuebler is defending Khadr and as he sees it, the Bush administration is creating a legal system for the Guantanamo prisoners on the (unintelligible).

Lt. Cmdr. KUEBLER: We are designing a process after the fact. You'd convict people that we've already basically determined are guilty. And that is an absolute affront to rule of law.

TEMPLE-RASTON: Here's the problem. When Congress passed a law setting up tribunals for some Guantanamo detainees, it said the only people who could be brought up on charges were those deemed unlawful enemy combatants.

The problem is that Guantanamo Bay uses a different term. It describes prisoners simply as enemy combatants without the word unlawful attached. That distinction is the basis of Khadr's appeal.

The government is arguing that if you were a member of al-Qaida, which Khadr allegedly was, then the unlawful part is understood. Francis Gilligan is one of the government's lawyers.

Colonel FRANCIS GILLIGAN (Retired; Lead Prosecutor, U.S. Court of Military Appeals): Well, if the trial goes forward, won't that automatically satisfy the unlawful enemy combatant if all five charges are proven beyond a reasonable doubt. My answer to the judges was, yes, it would.

TEMPLE-RASTON: All those back and forth about who can be brought up on charges is part of the growing pains of a new system. These new military commissions are supposed to end up deciding the fates of about 80 detainees, including so-called high-value prisoners like Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks.

Civil liberties advocates say the trials are a sham. The head of the government's office of prosecution, Moe Davis, said detainees are getting the same due process as soldiers facing court martial.

Colonel MOE DAVIS (Chief Prosecutor, Court of Military Commission): So these rules and these judges are good enough for members of the U.S. Armed Forces. They're are good enough for these trials. We have nothing to be ashamed of in this process. And this is not a sham and, you know, just going through the motions to convict somebody.

TEMPLE-RASTON: What is certain is that building a judicial system from the ground up isn't an easy proposition. It will take some time to see if detainees end up with fair trials or something that fall short of that. The judges did not indicate when they might make a decision on the Khadr case.

Dina Temple-Raston, NPR News, Washington.

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New Appeals Court Mulls 'Enemy Combatant' Labels

In a federal courthouse a block away from the White House, a special appeals court for Guantanamo detainees met for the first time this week.

The U.S. Court of Military Commission Review heard arguments in the case of Omar Khadr, a Canadian national who was captured in Afghanistan in 2002 for allegedly killing a U.S. soldier. The panel of three military judges must decide whether the discrepancies between the wording in a new terrorism law and its actual practice are enough to derail the Defense Department's effort to launch its first terrorism trials.

"This is about the credibility of the U.S. and the perception at home and abroad of our commitment to the rule of law," Lt. Commander William Kuebler told reporters outside the courthouse. Keubler is leading Khadr's defense and, as he sees it, the Bush administration is creating a legal system for the Guantanamo prisoners on the fly.

"We are designing a process after the fact to convict people we have already basically determined are guilty," he said. "And that is an absolute affront to the rule of law."

The problem is largely one of semantics. When Congress passed a law setting up tribunals for some Guantanamo detainees, it said the only people who could be brought up on charges were those deemed "unlawful enemy combatants." The problem is that Guantanamo Bay uses a different term when it designates prisoners: it says simply "enemy combatants," without the word "unlawful" attached.

That distinction is the basis of Khadr's appeal. The government argues that if a suspect is a member of al Qaida, which Khadr allegedly was, then the "unlawful" part is understood.

"If the trial goes forward, won't that automatically be satisfying the unlawful enemy combatant requirement, if all five charges are proven beyond a reasonable doubt?" asked Francis Gilligan, a retired colonel who is one of the government's lawyers. "My answer to the judges was yes it would."

All of this back-and-forth about who can be brought up on charges is part of the growing pains of a new system. The new military commissions are supposed to end up deciding the fates of about 80 detainees, including the so-called "high value" prisoners like Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001, attacks.

Civil liberties advocates say the trials are a sham. The head of the government's office of prosecution, Mo Davis, said detainees were getting the same due process as soldiers facing court martial.

"If these rules and judges are good enough for members of the U.S. armed forces, then it is good enough for these trials," he said. "We have nothing to be ashamed of in this process. This isn't a kangaroo court."

What is certain is that building a judicial system from the ground up isn't an easy proposition. It will take some time to see whether detainees end up with a fair trial or something that falls short of that. The judges did not indicate when they might make a decision on the Khadr case.

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