The imminent start of war crimes trials at Guantanamo Bay has been thrown into doubt by a US Supreme Court ruling that detainees have constitutional rights and can appeal to civilian courts.
Lawyers for an alleged September 11, 2001 plotter and for Osama bin Laden’s former driver said they would use the ruling to argue that charges against their clients should be dismissed.
Navy Lt Cmdr Brian Mizer said he would try to stop the first scheduled war crimes trial, to start on July 14, by arguing that his client was denied his constitutional right to a speedy trial.
He is defending bin Laden’s former driver, Salim Hamdan, a Yemeni held at Cuba’s Guantanamo Bay for six years.
“The entire legal framework under which Mr Hamdan was to be tried has been turned on its head,” Lt Cmdr Mizer said.
The ruling also could have far-reaching consequences for the five alleged September 11 conspirators, who were arraigned at Guantanamo last week.
Navy Cmdr Suzanne Lachelier, the lawyer for suspect Ramzi Binalshibh, said she would use yesterday’s ruling to seek the dismissal of charges.
“The whole purpose of the administration was to evade application of the constitution. Apparently that doesn’t work anymore,” she said.
The Pentagon had no immediate comment on the Supreme Court ruling, but President George Bush said he would determine whether new legislation “might be appropriate” in response.
The trials operate under a law passed by a Republican-controlled Congress in 2006, but Congress is now controlled by the Democrats.
US officials have said the military can hold enemy fighters without charge for the duration of the conflict to protect the US and its allies. In this case, the conflict is the war on terror, which could last generations.
“I believe the drafters of the constitution would be turning over in their graves to find out that people intent on destroying our society have constitutional rights,” said Air Force Colonel Morris Davis, the former chief military prosecutor at Guantanamo who resigned in October amid disagreements with his Pentagon superiors.
Mr Bush authorised war crimes trials in the wake of the 2001 terrorist attacks, but more than six years later not a single one has been held. One Guantanamo detainee, David Hicks, accepted a plea bargain in 2007, served nine months and is now free in his native Australia.
The process has been mired in confusion over procedures and temporarily halted by two previous Supreme Court rulings. This third ruling threatens further delays because it allows defendants to turn to civilian courts to challenge whether the military tribunals have the authority to try them.
“The Bush administration has had three strikes in the US courts – and they’re out,” said Clive Stafford Smith, a lawyer for Guantanamo detainees. “But the prisoners still have a long way to go.”
Some 270 men are at Guantanamo, from committed jihadists such as confessed September 11 mastermind Khalid Sheikh Mohammed, to Taliban foot soldiers and men who were sold to US forces for bounties and who proclaim their innocence.
However, while the new ruling threatens to delay the military trials, it does not necessarily deal them a fatal blow, says David Glazier, an associate professor at Loyola Law School in Los Angeles.
“I think it makes it more likely than not that no trials will be complete by the time of the November election,” Mr Glazier said.
He said military judges may go ahead with the war crimes trials while detainees’ challenges move through federal courts, unless a federal judge tells them to wait. But he said some military judges may choose to wait, especially if they believed the defence could prevail in civilian court.
The Pentagon has said it plans to prosecute about 80 prisoners. Many of the other 190 or so remaining have been cleared for transfer to their home countries but languish behind bars because the US has been unable to secure repatriation agreements.
Lawyers say the US may now push harder to repatriate them to avoid more challenges in civilian courts.