By James Vicini Sat Sep 30, 9:26 AM ET
WASHINGTON (Reuters) - New military trial rules for terrorism suspects that
President George W. Bush' President George W. Bush endorsed and Congress approved will draw vigorous court challenges and could be struck down for violating rights guaranteed under the U.S. Constitution, critics and legal experts said.
The legal battle will likely be ultimately decided by the
U.S. Supreme Court U.S. Supreme Court, which could be troubled the rules unconstitutionally restrict the suspects' rights, they said.
They cited the bill's provisions that strip foreign suspects of the right to challenge their detentions in U.S. courts, the broad definition of enemy combatants and what they described as unfair rules for military trials, including some use of hearsay and coerced evidence.
"I have no doubt that this is headed for the Supreme Court. Once again, the administration has overreached, and that makes it more likely that the court will strike it down," Stanford University law professor Jenny Martinez said.
"It allows the use of coerced evidence, which our laws have rejected since the founding of this country. It also denies noncitizens, including those in the U.S., access to court for fundamental human rights violations like torture," she said.
Justice Department spokesman Brian Roehrkasse defended the legislation as "plainly constitutional" and denied it foreclosed all judicial review.
'FAIR AND EFFECTIVE TRIALS'
"The military commissions established under the act provide the accused with the fundamental rights that will ensure fair and effective trials that fully satisfy all applicable standards under the Geneva Convention and our Constitution," he said.
The Supreme Court, by a 5-3 vote on June 29, struck down as illegal Bush's original system of military trials established after the September 11 attacks for prisoners at the
U.S. Navy'U.S. Navy base at Guantanamo Bay, Cuba.
The ruling said the administration could either rely on the traditional U.S. court-martial system or seek congressional approval of rules to prosecute and interrogate the prisoners. The issue has become a major political battle before the November 7 elections in which control of Congress is at stake.
Democrats and even some Republican lawmakers said taking away the prisoners' right to have habeas corpus hearings in federal court was unconstitutional and would be struck down by the Supreme Court. The experts agreed.
"I believe that the court will conclude that the habeas- stripping provision is unconstitutional," said Eugene R. Fidell, a Washington attorney and military law expert who is president of the National Institute of Military Justice.
The bill expands the definition of "enemy combatants" to those who provide weapons, money and other support to terrorist groups. It defines conspiracy as a war crime, although four Supreme Court members in the majority in June said it was not a war crime.
"Just because Congress puts a stamp of approval on something, it does not necessarily mean it will pass constitutional muster before the Supreme Court," said Scott Silliman, a Duke University law professor and executive director at its Center on Law Ethics and National Security. He predicted the legality of the new rules would be a close issue for the courts. At the Supreme Court, it could come down to Justice
Anthony Kennedy Anthony Kennedy, the swing vote with four liberals and four conservatives.
Michael Ratner, president of the New York-based Center for Constitutional Rights, which represents hundreds of Guantanamo prisoners, vowed to challenge the removal of the habeas corpus rights.
Ratner said such an opportunity could arise when the administration moves to dismiss pending Guantanamo cases in order to apply the new rules. Defense lawyers could then respond by challenging the rules' constitutionality.
amen...one can only hope that the Supreme Court that awarded the presidency to Mr. Bush in 2000, the same court that this president has tried to load with likeminded conservatives will indeed restore much-needed oversight to a runaway executive branch and provide, in the best sense of the phrase, poetic justice...
