Court ruling leaves Bush in quandary
If administration follows codes of justice, detainees may be harder to convict

By Richard B. Schmitt
Los Angeles Times
WASHINGTON -- The Supreme Court decision striking down the tribunal system created by the Pentagon for trying accused enemy combatants at Guantanamo Bay has apparently presented the Bush administration and its allies in Congress with two choices -- both fraught with risk.

They can use the Republican majorities in the House and Senate to put a quick congressional seal of approval on something close to the existing system but run the risk that it, too, will be struck down by the court.
Or they can follow the path suggested by the court and devise a system embracing procedural and other principles of the U.S. Uniform Code of Military Justice and the Geneva Conventions but risk the possibility that few, if any, of the accused terrorists will be convicted.
And both choices, as well as attempting to chart a middle course, could set off the kind of protracted, internally divisive debate that the White House and GOP political strategists would not relish with the November elections approaching.
Indeed, Sen. Dianne Feinstein, D-Calif., issued a warning Sunday: "Republicans will rue the day if they politicize this," she told ABC's "This Week."
Two Republican senators, prospective GOP presidential candidate John McCain of Arizona and Judiciary Committee chairman Arlen Specter of Pennsylvania, have made clear their desire to dig into the problem.
"We're going to have to dot all the I's and cross all the T's on this legislation to make sure it passes muster," Specter said Friday.
As a result, the court's decision has set up what may become the biggest test so far of the government's ability to reconcile a maximum effort against terrorism with traditional American standards of legal fairness and decency. And the test has been almost five years in the making.
Since the Sept. 11, 2001, terrorist attacks, the Bush administration and its supporters have argued that extreme measures are necessary and justified against a foe that employs extreme tactics and rejects accepted moral standards. Civil libertarians, many Democrats and now the Supreme Court have argued that the war on terrorism must be waged in a manner compatible with established legal and ethical principles.
The challenge is to devise a system that will survive later judicial review, yet permit successful prosecution of the enemy combatants held in Guantanamo Bay.
Many legal experts say that will be hard to do.
"Can you set up a tribunal that will pass what we now know to be the judicial standards the Supreme Court is going to impose? The answer is unequivocally 'yes,' " said John Hutson, a former Navy judge advocate general and dean of the Franklin Pierce Law Center.
"Is the prosecution going to be able to get convictions?" he said, "I think there is a chance you won't see any."
That's because a trial system capable of withstanding judicial review would likely exclude much of the evidence the government has gathered on battlefields and in prison interrogation rooms.
The military code that the court pointed to as a road map is "a good framework for setting up tribunals," McCain said Sunday on "This Week." The Uniform Code of Military Justice mirrors many of the procedural rules of U.S. civilian courts and the bedrock principles that the court mandated last week.
Yet experts acknowledge that one result of embracing such a system could be that few, if any, of the Guantanamo detainees the government has identified for trial could end up being convicted -- or even going to trial.
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