Sunday, June 23, 2002

War on Terror Makes for Odd Twists in Justice System
In one of the strange turns in the war on terrorism, two Americans are being held in military brigs without access to lawyers, while two foreigners accused of terrorist activities are being tried in federal court with the full range of protections usually accorded to Americans.

This patchwork approach has revealed a flexibility in the justice system but also what critics call an overly broad assertion of presidential authority.

The government contends it can detain people until the hostilities are over — whenever that is — without charging them or giving them access to lawyers. The dispute is likely to end up before the Supreme Court.

Some legal experts say the variety of approaches underscores the judicial system's elasticity. "There is a learning process," said Eugene R. Fidell, president of the National Institute of Military Justice. "The fact is, there seems to be an unusual range of options available."

David Cole, a Georgetown University law professor, said that the evidence, or lack of it, might explain the inconsistencies in treatment. "Where they feel they can win a criminal case, they'll go the criminal route," Professor Cole said. "Where they feel they can't, where they don't have the evidence," officials put the prisoner in a military brig, he said.


He also suggested that the Lindh case was demonstrating to the government that public trials for some of these suspects can be tricky. For example, the government has suggested that Mr. Hamdi, as well as some prisoners in Guantánamo, may have information that clears Mr. Lindh. The judge in Mr. Lindh's case, T. S. Ellis III, has told the defense lawyers that they can talk to Mr. Hamdi if Mr. Hamdi's lawyer agrees, but the government is not agreeing that Mr. Hamdi even has a lawyer.

Judge Ellis said denying Mr. Lindh access to a witness who could clear him would violate his rights. He also told government prosecutors that at some point, they would have to decide whether to go ahead and prosecute Mr. Lindh, which would mean giving him access to Mr. Hamdi, or whether the need to keep Mr. Hamdi isolated was so overwhelming that they would drop their case against Mr. Lindh.

Others say the multiple approaches have exposed an overreaching of presidential authority. Michael Posner, executive director of the Lawyers Committee for Human Rights, said that the government's stance in the Hamdi case showed "that Americans now have less protection under the law than several of the noncitizens accused of taking action against the U.S."
http://www.nytimes.com/2002/06/23/national/23SUSP.html

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