Commentary: An alternative to military tribunals?

It may be reading too much into a few lines of presidential rhetoric, but the Bush Administration appears to have a planned alternative if the Supreme Court should strike down the military “war crimes” tribunals at Guantanamo Bay, Cuba. President Bush, in remarks last Friday that have drawn little media attention, talked of trying some of the Guantanamo detainees in courts inside the U.S.

At Camp David, the President had just had a round of talks with Denmark’s Prime Minister, Anders Fogh Rasmussen, and the two of them then met the press. During opening remarks, the President said the following (taken verbatim from the White House transcript):

“The Prime Minister and I share values, and he spent time making sure that I understood his strong belief that when we fight the war on terror and we help new democracies, that we’ve got to uphold the values that we believe in, and he brought up the Guantanamo issue. And I appreciate the fact that the Prime Minister is concerned about the decision that I made on — toward Guantanamo. I assured him that we would like to end the Guantanamo. We’d like it to be empty. And we’re now in the process of working with countries to repatriate people.

“But there are some that, if put out on the streets, would create grave harm to American citizens and other citizens of the world. And, therefore, I believe they ought to be tried in courts here in the United States. We will file such court claims once the Supreme Court makes its decision as to whether or not — as to the proper venue for these trials. And we’re waiting on our Supreme Court to act.”

During the question-and-answer session that followed, reporters did not seek to draw out the President on what he meant. Only some advocacy groups, like the American Civil Liberties Union, have picked up on those comments, treating them — appropriately — as a considerable surprise.

It is highly doubtful than there have been leaks to the Administration about what the Supreme Court is about to decide in the case of Hamdan v. Rumsfeld (05-184), the constitutional challenge to the tribunals — formally, “military commissions” — that are preparing to try ten Guantanamo detainees on war crimes trials. So, the likelihood is that the Administration has put together a contingency plan, just in case that case goes against the tribunals.

Up to now, the Administration has rigorously resisted trials in civilian courts inside the U.S. In fact, that resistance was the main reason Guantanamo was set up, as a terrorist detention center under the control of the military. It may be that the President was not hinting at trials in civilian courts, but rather could have been referring to military courts — courts-martial. He did say “courts,” and not commissions, it may be worth noting. (UPDATE: At a press conference at the White House on Wednesday, the President spoke again on the subject, but was not much more specific, saying: “I’d like to close Guantanamo, but I also recognize that we’re holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts. And the best way to handle — in my judgment, handle these types of people is through our military courts. And that’s why we’re waiting on the Supreme Court to make a decision.”)

In the event that a contingency plan does involve plans for trials in the civilian courts, the Administration has a favorite venue — Alexandria, Va. It was in U.S. District Court there that federal prosecutors came within a single juror’s vote of obtaining a death sentence for terrorist conspirator Zacarias Moussaoui. And, in perhaps the most successful war-on-terrorism prosecution so far inside the U.S., the Department succeeded — in a bench trial in that court — in getting a number of convictions and long sentences for an alleged war training plot by paintball gaming in the suburban woods of Virginia.. That is also the court where now-Deputy Attorney General Paul McNulty, as U.S. Attorney, was in charge of a number of these prosecutions. And it is a court from which appeals go to the Fourth Circuit Court, which has rendered several key rulings in favor of the Administration in terrorism cases.

A plan for contingency trials outside the tribunals system, of course, may never be necessary. The Court, when it decides Hamdan, could do one of two things that would take away the need for an alternative. It could rule that Congress has taken away the authority of the Supreme Court to rule on Salim Ahmed Hamdan’s case, and it could rule, on the merits, that the military commissions are legal as presently set up.

With perhaps only a handful of decision days remaining before the Court recesses for the summer, the Hamdan case should be decided shortly. It will be decided by an eight-member Court; Chief Justice John G. Roberts, Jr., is not taking part because he sat on the Hamdan case as a D.C. Circuit Court judge.

Continuing political, and diiplomatic, pressure on Guantanamo, of course, could provide the impetus for an alternative to trials at the Cuban prison camp even if the Supreme Court rules in the government’s favor..