Of the 500 detainees being held at Guantanamo Bay, only nine have been charged and none has been successfully prosecuted. On Friday, one of the first military trials was supposed to get under way, but a federal judge has postponed it, saying she wants to wait for a Supreme Court decision on the legality of such military tribunals. As NPR's Jackie Northam reports, this case highlights the difficulties involved in prosecuting any of the Guantanamo detainees.


In late 2001, US forces in Afghanistan captured an Australian national named David Hicks and sent him to Guantanamo Bay, Cuba. About two years ago, the Pentagon charged him with, among other things, attempted murder and aiding the enemy. Hicks was due to be one of the first detainees to face a US military tribunal, that is until a federal judge yesterday postponed his trial. Now he'll have to wait for a Supreme Court decision, expected next summer, to see if his case will resume.

Still, Hicks is relatively better off than most of those at Guantanamo. He's one of the few who has been charged, and more than half of the 500 prisoners have had no communication with a lawyer. John Hutson, the dean of the Franklin Pierce Law Center and a former Navy judge advocate general, says the US should not leave the detainees to languish in prison. Hutson says they need a day in court.

Dean JOHN HUTSON (Franklin Pierce Law Center): The detainees are either war criminals or they're innocent. And in either case, they need to be dealt with. Confine those people who need confinement, execute the people that need to be executed and release the people that should be released.

NORTHAM: The Pentagon says the Guantanamo detainees do not fit into the normal profile of a combatant. They don't wear uniforms, nor operate under the Geneva Conventions, so the regular laws of war do not apply. Marvin Ott, a professor at the National War College, says even normal court procedures, military or civilian, can't apply to the Guantanamo detainees.

Professor MARVIN OTT (National War College): These are people that we know very little about, very often would not even be able to determine what their real names were, even where they were from. And almost without exception, these will be people that you can't build a conventional court case against. But given who they are, you also can't say, `Well, just release them.' These are not conventional criminals. So you're stuck.

NORTHAM: For the first few years after 9/11, the courts and Congress gave the Bush administration latitude to do what was needed to fight the war on terrorism, including the development of the detention policies at Guantanamo. Now that's changing, and the other two branches of government are weighing in. The Supreme Court recently said it would hear a challenge to the military trials the Pentagon hope to mount at Guantanamo. Scott Silliman, a professor at Duke University and an expert on military law, says it was inevitable that Congress would enter into the debate.

Professor SCOTT SILLIMAN (Duke University): I think many things have happened--Abu Ghraib being one; the international criticism of Guantanamo Bay and the potential of holding folks down there forever being another--that the Congress has finally come to the point where they believe they've got to speak and they've got to legislate in this area.

NORTHAM: The National War College's Ott says the US hasn't faced this type of enemy before, so it must start thinking in new ways how to handle the detainees.

Prof. OTT: It really is new ground. It almost calls for a kind of--almost at a constitutional level, a rethink of: How do we handle a situation like this? What kind of institutions can we create? What kind of law can we create?--almost breaking the mold--I mean, breaking with the past.

NORTHAM: Ott says whatever is decided will probably be a prototype because the US will likely be dealing with the terrorism threat for a long time. Jackie Northam, NPR News, Washington.

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