Trials by military commission at Guantánamo Bay, Cuba, will go forward despite a U.S. Supreme Court decision granting war-on-terror detainees recourse to federal court, the Bush administration said late Thursday.
The Department of Justice issued a statement after the close of business declaring its disappointment with the U.S. Supreme Court ruling, but saying the Pentagon will continue holding the trials before military judges and jurors.
Pentagon prosecutors have sworn out war crimes charges against 20 of the 270 detainees at the remote U.S Navy base in Cuba, and are seeking the death penalty for six of them as alleged senior al Qaeda leaders.
Five, chief among them alleged 9/11 mastermind Khalid Sheik Mohammed, are accused as co-conspirators in the Sept. 11, 2001, terror attacks that killed 2,973 men, women and children.
A sixth is charged with the August 1998 East Africa Embassy bombings.
''We are disappointed with the Court's decision,'' said the Justice Department statement, noting that the justices' decision requires that ``hundreds of actions challenging the detention of enemy combatants at Guantánamo to be moved to [U.S.] district court.''
The case is called Boumediene vs. Bush and was named for Lakhdar Boumediene, a 42-year-old Algerian captive at the Navy base, who has never been charged with a crime. His lawyers want a federal judge to order him set free.
''The Department is reviewing the decision and its implications on the existing detainee litigation,'' the statement said. ``While we disagree with the ruling, it is important to note that the Boumediene case did not concern military commission trials.
``Those enemy combatants who have been charged by a military commission with war crimes are afforded numerous additional protections in connection with those trials. Military commission trials will therefore continue to go forward.''
The Justice Department statement also asserted that the military judges presiding at the post-9/11 war court at Guantánamo will decide whether and how the Supreme Court ruling applies to the cases.
''Those matters will initially be litigated before the military commissions themselves.'' it said. ``In the event of a conviction, the accused will have the right to appeal to both military and federal appellate courts.''
The Pentagon prosecutor has proposed opening the first death penalty trial of five alleged co-conspirators in the Sept. 11, 2001, attacks on Sept. 18. The Pentagon has denied the timing of the trial, during the fall campaign season, is politically motivated.
Before the death penalty trial, however, could come two noncapital trials.
One is of Osama bin Laden's driver, Salim Hamdan, 36, of Yemen, who is accused of being an al Qaeda foot soldier, and facing a life sentence if convicted. His trial is slated to start July 14.
A second is Canadian Omar Khadr, 21, accused of the grenade killing of a U.S. soldier in July 2002 in Afghanistan. He was 15.
But the military attorney for two men before the war court pledged two-pronged constitutional challenges to the commissions themselves -- both in Washington before federal judges and at Guantánamo before the military judges.
Now that the U.S. Supreme Court has said detainees get the habeas corpus provisions guaranteed by the U.S Constitution, said Navy Lt. Cmdr. Brian Mizer, a military defense attorney, the ``entire support structure for the Military Commissions Act has been destroyed.''
The act, passed by Congress in 2006, created trials for war-on-terror detainees, but with lesser protections than defendants in federal courts.
In some instances, conviction can carry execution.
Now, Mizer said, lawyers will argue that war-on-terror captives are entitled to the same constitutional protections that give captives on U.S. soil the right to file habeas corpus petitions.
For example, the Constitution forbids the use in court of confessions and other evidence obtained through coercion -- which some call torture. It also forbids the use of hearsay evidence.
But Mizer said the case of Osama bin Laden's driver, accused of providing material support for terrorism, already has ''five pages of hearsay evidence'' to be used at trial.
''And that violates the Sixth Amendment,'' he said.
His other client is Ammar al Baluchi, a Pakistani national accused of helping provide funds to the 9/11 hijackers, and facing death.
In his case, said Mizer, the defense can prove that he was interrogated with ''torture'' during about three years in secret CIA custody. ''Even military judges I think will apply the Constitution and exclude those statements,'' Mizer said.
But he cautioned that Thursday's ruling doesn't mean his clients would be set free.
''No one has questioned the ability of the government to detain actual unlawful enemy combatants for national security,'' said Mizer. ``The question has been will these men be afforded due process. Today the Supreme Court said, no they can't be held indefinitely without due process.''
