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."
Attorneys for suspected al-Qaida 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-Qaida 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-Qaida 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 attorney, 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.
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.