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New terrorism trial rules could face Supreme Court scrutiny

Specialists foresee varied doubts on constitutionality

WASHINGTON -- New military trial rules for terrorist suspects, which President Bush has endorsed and which Congress has approved, will draw vigorous court challenges and could be struck down for violating rights guaranteed under the Constitution, several critics and legal analysts said last week.

The legal battle is expected to be ultimately decided by the Supreme Court, which could be troubled that the rules unconstitutionally restrict the terrorist suspects' constitutional rights, both before and during a trial, the legal observers said.

They cited the bill's provisions that strip foreign suspects of the right to challenge their detentions in US courts, the broad definition of enemy combatants, and what they described as unfair rules for military trials, including some use of hearsay and coerced evidence.

``I have no doubt that this is headed for the Supreme Court. Once again, the administration has overreached," said a Stanford University law professor, Jenny Martinez.

``It allows the use of coerced evidence, which our laws have rejected since the founding of this country. It also denies noncitizens, including those in the United States, access to court for fundamental human rights violations like torture," she said.

A Justice Department spokesman, Brian Roehrkasse, defended the new antiterror legislation as ``plainly constitutional."

``The military commissions established under the act provide the accused with the fundamental rights that will ensure fair and effective trials that fully satisfy all applicable standards under the Geneva Convention and our Constitution," he said.

Two senior national security officials sparked a debate in the Bush administration last year by proposing that the government establish new rules for questioning and prosecuting terrorist suspects -- and also seek congressional approval for the policies, The New York Times reported today.

Gordon R. England, acting deputy secretary of defense, and Philip D. Zelikow, the counselor of the State Department, wrote a memo urging the administration to restore minimum standards of prisoner treatment under the Geneva Convention, The Times said in its report.

They also urged trying detainees before military tribunals and eventually closing the detention facility at Guantanamo Bay, Cuba.

The Supreme Court, by a 5-to-3 vote on June 29, struck down as illegal Bush's original system of military trials, which was established after the Sept. 11 attacks, for prisoners at the Navy base at Guantanamo Bay.

The justices said the administration could rely on the traditional US system or seek congressional approval of rules to prosecute and interrogate prisoners. The issue has become a battle before the Nov. 7 elections, in which control of Congress is at stake.

Democrats and even some Republican lawmakers said taking away the prisoners' right to have habeas corpus hearings in federal court was unconstitutional and would be struck down by the Supreme Court.

Several legal specialists agreed.

``I believe that the court will conclude that the habeas-stripping provision is unconstitutional," said Eugene R. Fidell, a lawyer and military law expert who is president of the National Institute of Military Justice.

Habeas corpus provisions include the right of prisoners to have a court determine the legality of their detention.

The bill expands the definition of ``enemy combatants" to those who provide arms, money, and support to terrorist groups. It defines conspiracy as a war crime, although four Supreme Court members in June said it was not.

``Just because Congress puts a stamp of approval on something, it does not necessarily mean it will pass constitutional muster before the Supreme Court," said Scott Silliman, a law professor at Duke University.

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