White House in dilemma over Guantánamo

WASHINGTON — The Supreme Court decision striking down the tribunal system created by the Pentagon for trying accused enemy combatants at Guantánamo Bay has apparently presented the Bush administration and its allies in Congress with two choices — both fraught with risk.

They can use the GOP majorities in the House and Senate to put a quick congressional seal of approval on something close to the existing system, but run the risk that it, too, will be struck down by the court.

Or they can follow the path suggested by the court and devise a system embracing the procedural and other principles of the U.S. Uniform Code of Military Justice and the Geneva Convention, but risk the possibility that few, if any, of the accused terrorists will be convicted.

Both choices could set off the kind of protracted, internally divisive debate that the White House and GOP political strategists would not relish with the November elections approaching.

Indeed, Sen. Dianne Feinstein, D-Calif., issued a warning on Sunday: "Republicans will rue the day if they politicize this," she told ABC's "This Week."

Two Republican senators, prospective GOP presidential candidate John McCain of Arizona and Judiciary Committee Chairman Arlen Specter of Pennsylvania, have made clear their desire to dig into the problem.

"We're going to have to dot all the I's and cross all the T's on this legislation to make sure it passes muster," Specter said Friday.

As a result, the court's decision has set up what may become the biggest test so far of the government's ability to reconcile maximum effort against terrorism with traditional American standards of legal fairness.

The challenge is to devise a system that will survive judicial review, yet permit successful prosecution of enemy combatants held at the U.S. prison at Guantánamo Bay, Cuba.

"Can you set up a tribunal that will pass what we now know to be the judicial standards the Supreme Court is going to impose? The answer is unequivocally yes," said John Hutson, a former Navy judge advocate general and dean of the Franklin Pierce Law Center, Concord, N.H.

But, he added: "Is the prosecution going to be able to get convictions? I think there is a chance you won't see any."

That's because a trial system capable of withstanding judicial review would likely exclude much of the evidence the government has gathered on battlefields and in prison interrogation rooms.

The military code that the court pointed to as a roadmap is "a good framework for setting up tribunals," McCain said Sunday on "This Week." The Uniform Code of Military Justice mirrors many of the procedural rules of U.S. civilian courts and the bedrock principles that the Supreme Court mandated last week, including the right of the defendant to be present during trial and to hear the evidence against him.

Yet experts say embracing such a system could mean that few, if any, of the Guantánamo detainees the government has identified for trial could be convicted — or even be tried.

The rules created for the Pentagon's military commissions, or tribunals, permit the introduction of secret evidence that defendants are not allowed to see, testimony obtained by coercion and other material that would not be accepted in traditional legal systems. Such evidence would probably be excluded under more traditional legal rules. Moreover, such rules could compel the government to reveal now-secret information or give up prosecutions.

That prospect rankled Rep Peter King, R-N.Y., chairman of the House Homeland Security Committee.

"We can't be turning over evidence and discovery and giving the benefit of the doubt to terrorists in these cases," he said Sunday on CNN's "Late Edition." "This is different from other wars. This is not like capturing uniformed soldiers in World War II or the Korean War or even Vietnam."

But McCain said, "Using the guidelines laid down by the Supreme Court, we can make sure that bad guys — and there are bad guys — are not released and those who deserve to be released will be."

Material from The Associated Press is included in this report