Confessions might pose trial hurdle

The Baltimore Sun

WASHINGTON -Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay, where under orders by President Barack Obama, he could one day be among detainees whose fate is finally decided by a U.S. court.

But in 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 their rights against self-incrimination under U.S. law.

The Miranda warning, a fixture of American jurisprudence and staple of television cop shows, might also be one of a series of constitutional hurdles standing between Obama's order to close the island prison and court trials on the mainland.

A procession of similar challenges - secret evidence, information from foreign spy services and coerced statements - could also spell trouble for prosecutors.

All of these problems illustrate the larger difficulty that lies ahead as the nation moves from the "law of war" orientation used by the Bush administration in dealing with detainees to the civilian legal approach preferred by Obama.

Obama announced sweeping changes, ordered humane treatment and invited in the International Red Cross last month. 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 simply has not decided on rules to detain and try terror 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."

The administration has launched a review of the individual detainee cases, aimed at determining who can be prosecuted in federal courts.

"Miranda is an issue; it is a potential issue in prosecution," said a senior Obama administration official, speaking on condition of anonymity because the review is continuing. "The purpose of the review is to see how much of an issue [it is] and to see in what cases it is possible to proceed."

The administration review is also looking at whether the military commission system instituted by former President George W. Bush should be retained in an altered form for detainees who cannot be tried because of Miranda or other legal hurdles.

"The executive order purposely did not eliminate or do away with military commissions, and that is because there is an understanding that option needs to remain open to see what the review turns up," the senior Obama administration official said. "Some revised type of military commission might possibly be necessary, but that is very much an open question."

Federal courts might find that Miranda does not apply to interrogations conducted for the purpose of intelligence gathering, said Gabor Rona, the international legal director for Human Rights First. Instead, judges might decide to accept or reject confessions over the question of whether they were coerced.

"The idea that the failure to give Miranda warnings is a great impediment to using federal courts is a simplistic falsehood," Rona said.

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