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New terror court off to a shaky start

Questions remain about whether the court itself is legal.

By Asociated Press
Published August 23, 2007

WASHINGTON - The nation's new terrorism appeals court opens for business this week and among the first questions it faces is whether the court is even legal.

Then there are questions about whether its judges were ever really appointed and if the military can appeal a case to a court that, until recently, existed only in theory.

Only then can the U.S. Court of Military Commission Review, meeting in a borrowed courtroom near the White House, decide its first case.

These are the growing pains of the Bush administration's nascent military commission system for suspected terrorists. Supporters say they are only temporary afflictions for a process that is evolving. But critics say the problems are more serious.

Authorities are counting on the commissions to decide the fate of about 80 detainees at Guantanamo Bay in Cuba. But the system has yet to face a full test, and some lawyers say they expect to be arguing procedural issues for years.

"We're caught in a legal vortex with no prospect of actually resolving issues of guilt or innocence," said attorney Nathan Whitling, who will argue the system's first appeal Friday in a courtroom at the U.S. Court of Appeals for the Federal Circuit.

Whitling's client, Omar Khadr, was 15 when he was arrested in 2002 on an Afghan battlefield, where prosecutors say he killed a U.S. soldier. A Guantanamo Bay tribunal declared the Canadian an "enemy combatant," and prosecutors sought to make him among the first to face trial before a military commission.

But the military commission law, which Congress quickly crafted after the Supreme Court rejected its original plan, said detainees must be designated "unlawful enemy combatants." A judge dismissed Khadr's case because "lawful" combatants would deserve prisoner of war status and other rights under international law.

The Pentagon has rejected this as merely semantics.

"We have said that all our Guantanamo Bay detainees are unlawful," said Navy Cmdr. Jeffrey Gordon.

The military decried the ruling and quickly appealed. But the law was so new that the appeals court was little more than a mailing address in Virginia.

"On the day they filed their appeal, they were filing it in front of a court that didn't exist," Whitling said. "There were no judges appointed and no rules of the court."

The military rushed to staff the court. Griffin Bell, who served as attorney general under President Jimmy Carter, was named chief justice. The court quickly - Whitling says inappropriately - crafted rules and preparations were made to hear Khadr's case.

"You've got the ultimate commanders of the armed forces saying, 'This decision is wrong.' And then they go and decide who will hear the appeal," Whitling said, outlining one of the arguments he's making in his case. "They created a court for the purpose of overturning a decision they don't like."

In their hurry, Whitling says, the military made another procedural gaffe. The law says the secretary of defense will appoint the judges. The judges were appointed by the deputy secretary of defense.

[Last modified August 23, 2007, 01:12:22]