WASHINGTON – The Bush administration told a newly formed appeals court Friday that discrepancies between the nation's new terrorism law and the way it is being carried out should not stall one of the Pentagon's first terror trials.
In a borrowed courtroom just steps from the White House, government attorneys urged the newly formed U.S. Court of Military Commission Review to look beyond the letter of the law when deciding whether the military botched its terrorism tribunals at Guantanamo Bay.
The case hinges on a single word: "unlawful."
Before terror suspects can be prosecuted before military commissions, the law requires they be deemed "unlawful enemy combatants." But Guantanamo Bay tribunals have simply been calling them "enemy combatants."
Lawyers for suspected Al Qaeda terrorist Omar Khadr argue that's a fatal flaw in the government's case, which charges Khadr with killing a U.S. soldier in Afghanistan.
A military judge dismissed Khadr's case in June, saying the Canadian citizen could not face a military commission. Lawful combatants are afforded prisoner-of-war status and other rights under international law.
If the three-judge appeals court upholds that ruling, the Pentagon might have to redo tribunals for dozens of detainees, including Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11 attacks. The Bush administration is planning to bring him and other "high value" detainees before military commissions, special courts set up for terror suspects.
In court Friday, the argument sometimes seemed a debate on the rhetoric of terrorism itself. Words such as "enemy combatant" and "Al Qaeda fighter" carry one meaning when used in political speeches and commentary, but when used by Congress to make laws those words have meanings all their own.
At its heart, the Pentagon's argument is simple: Al Qaeda combatants are, by definition, unlawful. Just because the Guantanamo Bay tribunals didn't use the wording required by Congress, they are still unlawful.
To get there, however, retired Col. Francis Gilligan, the government's lead lawyer, had to get a little creative. He said the judges should also consider a presidential directive and a Pentagon memo, not just the law.
"When you set up a new system, we're not all familiar with it" and details have to be fine-tuned, he said.
Navy Capt. John W. Rolph, the presiding appellate judge in the case, was not immediately persuaded as he tried to decipher "this new creature" that Congress created. He pressed Gilligan to look again at Bush's directive, which stated that all Taliban members — not all Al Qaeda members — are unlawful.
"Without expressly stating that members of Al Qaeda are unlawful enemy combatants, why do we care about a presidential memo?" Rolph said.
Army Col. Paul P. Holden Jr., another judge, followed up on that point. A key defense at trial could be that Khadr is a lawful combatant and is immune from murder charges. Has the government stripped that entire defense, Holden asked, based solely on a presidential memo?
Air Force Col. David Francis, the third judges, offered one possible solution. Even if the Guantanamo Bay tribunals didn't declare Khadr unlawful, perhaps the military commission judge could do that on his own before trial.
The judges in the case are all lawyers and served as judges in traditional military courts.
Khadr's attorneys say Congress and the Bush administration created this confusion by hastily crafting a legal system and patching it up to pass constitutional muster. If terror suspects were tried in civilian or traditional military courts, they say, the road would be clear.
Wearing robes instead of their military uniforms, the three judges peppered both sides with questions but offered no hint about how they would rule. A ruling is expected within a month.
The judges seemed to reject Khadr's argument that the court itself was improperly formed. When Khadr's case was dismissed in June, the appeals court did not exist, forcing the Pentagon to quickly create it and appoint judges. Though defense attorneys criticized that process, judges did not appear troubled.
Lt. Cmdr. William Kuebler, one of Khadr's attorneys, urged the court to declare itself invalid and "restore the credibility of the U.S. and the perception of its commitment to the rule of law."
Speaking outside of court, military officials acknowledged wrinkles in the new system but said they would soon be ironed out so the trials could begin.
"This shows this is a robust process," said Col. Morris D. Davis, the Pentagon's chief military commissions prosecutor. "This isn't a kangaroo court."