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New US Military Detainee Tribunals Leave Lawyers Scrambling - 2004-07-08

The U.S. Defense Department is setting up a new legal procedure to allow detainees held in military custody to challenge their detention. The new procedure is a result of a Supreme Court ruling last week allowing the detainees access to a neutral body to review their status. Legal experts say the U.S. government is establishing the new process in an effort to head off an expected wave of legal petitions from the detainees.

Legal analysts say the new procedure is designed to stem a potential wave of new federal court cases filed on behalf of those detained in the U.S.-led anti-terrorism effort.

The Pentagon announced late Wednesday the creation of a new legal arena, dubbed the "Combatant Status Review Tribunal," in which the nearly 600 men held at the U.S. military base at Guantanamo Bay, Cuba can challenge their status as "enemy combatants" before a three-member panel of U.S. military officers. They will be assigned a military officer as a "personal representative," but will not be allowed to have a lawyer.

But Rachel Meeropol of the Center for Constitutional Rights says the tribunal is unfairly weighted in favor of the government, because it does not give detainees the same legal rights, especially the right to a lawyer, that they would enjoy in a civilian U.S. court.

"The government has said over and over again that they have already determined that these individuals are enemy combatants," she said. "And yet that is exactly the question that the Supreme Court said these detainees have the right to challenge. How can we possibly have a neutral tribunal determining a fact that they already assume?"

Eugene Fidell, a lawyer and president of the National Institute of Military Justice, says the review tribunal is uncharted legal territory.

"This is yet another incident in the long and weird process that began after 9/11, where new kinds of legal measures are being taken or, in some cases, old legal measures are being dusted off and recycled in new circumstances. The law books don't help an enormous amount here. I think everybody is in a scramble. That includes the lawyers for the detainees, that includes the government's lawyers, and that also includes the federal judges," Mr. Fidell added.

But the Bush administration says the process grants the detainees most of the legal rights of American citizens.

David Rivkin, who was a Justice Department legal counsel in the administrations of President Reagan and the first President Bush, says the rights afforded detainees before the new tribunal are unprecedented for foreign captives.

"The degree of due process the detainees are getting here - opportunity to call witnesses, or at least to have written statements submitted by witnesses, opportunity to have a personal representative - is a great deal more than has ever been provided," he said.

The detainees still have the right to be heard in U.S. courts, but legal analysts say the record of a tribunal case could have a great impact on a court decision.