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Detainee Appeals Court Hears First Case

SCOTT SIMON, host:

A panel of three military judges that will rule on a key provision of a new terrorism law heard its first case this week. The U.S. Court of Military Commission Review heard arguments on the case of Omar Khadr, a Canadian national who was captured in Afghanistan in 2002 for allegedly killing a U.S. soldier.

The panel is being asked to decide whether the discrepancies between the wording in the new terror law and its actual practice are now to derail the Defense Department's first terror trials.

NPR's Dina Temple-Raston reports.

DINA TEMPLE-RASTON: Something unusual happened in a federal courthouse just a block from the White House. A special appeals court set up for Guantanamo detainees met for the first time. Meeting with reporters in the courthouse steps on a blistering Washington August afternoon, Lieutenant Commander William Kuebler said the stakes in the case could not be higher.

Lieutenant Commander WILLIAM KUEBLER (United States Navy Judge Advocate General's Corps): This is about credibility of the United States and the perception, both at home and abroad, of our commitment to the rule of law.

TEMPLE-RASTON: Kuebler is defending Khadr and as he sees it, the Bush administration is creating a legal system for the Guantanamo prisoners on the (unintelligible).

Lt. Cmdr. KUEBLER: We are designing a process after the fact. You'd convict people that we've already basically determined are guilty. And that is an absolute affront to rule of law.

TEMPLE-RASTON: Here's the problem. When Congress passed a law setting up tribunals for some Guantanamo detainees, it said the only people who could be brought up on charges were those deemed unlawful enemy combatants.

The problem is that Guantanamo Bay uses a different term. It describes prisoners simply as enemy combatants without the word unlawful attached. That distinction is the basis of Khadr's appeal.

The government is arguing that if you were a member of al-Qaida, which Khadr allegedly was, then the unlawful part is understood. Francis Gilligan is one of the government's lawyers.

Colonel FRANCIS GILLIGAN (Retired; Lead Prosecutor, U.S. Court of Military Appeals): Well, if the trial goes forward, won't that automatically satisfy the unlawful enemy combatant if all five charges are proven beyond a reasonable doubt. My answer to the judges was, yes, it would.

TEMPLE-RASTON: All those back and forth about who can be brought up on charges is part of the growing pains of a new system. These new military commissions are supposed to end up deciding the fates of about 80 detainees, including so-called high-value prisoners like Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks.

Civil liberties advocates say the trials are a sham. The head of the government's office of prosecution, Moe Davis, said detainees are getting the same due process as soldiers facing court martial.

Colonel MOE DAVIS (Chief Prosecutor, Court of Military Commission): So these rules and these judges are good enough for members of the U.S. Armed Forces. They're are good enough for these trials. We have nothing to be ashamed of in this process. And this is not a sham and, you know, just going through the motions to convict somebody.

TEMPLE-RASTON: What is certain is that building a judicial system from the ground up isn't an easy proposition. It will take some time to see if detainees end up with fair trials or something that fall short of that. The judges did not indicate when they might make a decision on the Khadr case.

Dina Temple-Raston, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Dina Temple-Raston is a correspondent on NPR's Investigations team focusing on breaking news stories and national security, technology and social justice.
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