Detainees present legal quandaries
Miranda rights in question at Guantanamo
WASHINGTON - Accused in a 2002 grenade blast that wounded two US soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay, Cuba, where, under new orders by President Obama, he one day could be among detainees whose fate is decided by a US court.
But, posing a potential problem, Pentagon officials note that most of the evidence against Jawad comes from his own admissions. And neither he nor any other Guantanamo detainee was ever told about the right against self-incrimination under US law. The Miranda warning, a fixture of American jurisprudence, might be one of a series of constructional hurdles standing between Obama's order to close the island prison and court trials in the United St.
A procession of similar challenges - secret evidence, information from foreign spy services and coerced statements - also could spell trouble for prosecutors. All of these problems illustrate the larger difficulty that lies ahead as the United States moves from the "law of war" orientation used under former president George W. Bush in dealing with detainees to the civilian legal approach preferred by Obama.
Obama last month announced sweeping changes, ordered humane treatment, and invited the involvement of the international Red Cross. But the changeover will not be easy or quick, underscoring the complexity of undoing the Bush administration's policies.
John D. Hutson, a former chief Navy lawyer who advised the Obama transition team, said the new administration had not decided on rules to detain and try terrorism suspects - those at Guantanamo now or those captured in the future.
"It's still up in the air," Hutson said, "to the consternation of some of the human rights groups."
Under the Bush administration's wartime approach, prisoners were captured and interrogated for intelligence purposes, then held as a preventive measure. No Obama administration official has suggested that prisoners should have been read their rights on a battlefield.
But once the decision was made to put them on trial, the legal picture changed. Some legal specialists said they should have been reinterviewed and warned that their statements could be used against them. But others said that for many, the history of their captivity made trial in a civilian court improbable.
"If you want to prosecute them, I have to think Miranda would apply. Miranda always applies in criminal prosecution," said a former Bush administration official, who spoke about pending cases on condition of anonymity. "Miranda hasn't applied to most things that happened in war before because there is no prosecution involved."
The prosecution of Jawad, now 24, has been hampered in other ways. Before a judge halted his military-commission case in December, evidence had been tossed out because of indications that it was obtained through coercion by Afghan police who previously held him. 