Associated Press
WASHINGTON -- The federal courts and military tribunals that will prosecute suspected terrorists vary sharply in their independence, public stature and use of evidence. But the Obama administration has so far offered no clear-cut rationale for how it chooses which system will try a detainee.
The fuzzy line drawn by the administration has made it easier for critics on both the left and right to assert that no firm legal principle is guiding the choices.
The administration has said similarly situated suspects can be tried in either system, while others may still be held without trial because there is insufficient evidence for either proceeding, but they are considered too dangerous to release.
The administration is sending professed Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged henchmen to a civilian trial in New York, while a suspect in the USS Cole bombing in 2000 and four other terror suspects will be tried by military commissions.
The major differences between the systems are the federal judiciary's independence, rooted in the Constitution and lifetime appointments of judges, and the relaxed rules for admitting evidence in military tribunals.
Federal courts bar evidence obtained by coercion. And the new law regarding military commissions that President Obama signed last month forbids evidence derived from torture and other harsh interrogation techniques. But the commissions still have rules that allow greater use of hearsay testimony and, in some instances, could permit the introduction of coerced testimony.
The larger issue, for some civil libertarians, is what the American Civil Liberties Union's Jonathan Hafetz called a "legitimacy deficit."
The commissions set up under President George W. Bush to try terrorism detainees have been revised several times based on Supreme Court decisions and acts of Congress that moved their rules and procedures closer to federal courts.
"But they just don't have the credibility and never will have the credibility that federal courts have," Hafetz said.
