Terrorism appeals court gets off to constitutionally shaky start

Experts disagree as to the
seriousness of the system’s problems.

WASHINGTON (AP) — The nation’s new terrorism appeals court opens for business this week and among the first questions it faces is whether the court itself is even legal.

Then there are questions about whether its judges were ever really appointed and if the military can appeal a case to a court that, until recently, existed only in theory.

Only then can the U.S. Court of Military Commission Review, meeting in a borrowed courtroom near the White House, decide its first case. The issue: Did the military, by omitting a single word — “unlawful” — mistakenly undermine tribunals at Guantanamo Bay.

These are the growing pains of the Bush administration’s nascent military commission system for suspected terrorists. Supporters say they are only temporary afflictions for a process that is evolving. But critics say the problems are more serious, the consequences of hastily building a legal system from scratch and tweaking it until it passes constitutional muster.

Authorities are counting on the commissions to decide the fate of about 80 Guantanamo Bay detainees, including the so-called “high-value” detainees whose ranks include Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11 attacks. But the system has yet to face a full test, and some lawyers say they expect to be arguing procedural issues for years.

“We’re caught in a legal vortex with no prospect of actually resolving issues of guilt or innocence,” said attorney Nathan Whitling, who will argue the system’s first appeal Friday in a courtroom at the U.S. Court of Appeals for the Federal Circuit.

Glenn Sulmasy, a Coast Guard Academy law professor and an early supporter of the military commissions, said the system has suffered a public perception problem because of its early problems. But he said it’s unfair to conclude the system is flawed. “This is the beginning of a process. We’re evolving into a more permanent terror judicial system and we’re watching it develop before our eyes,” Sulmasy said. “We’re reacting and learning and moving forward. We’re at times stumbling but our motives are pure.”