The Obama administration prefers war on terror prosecutions in civilian courts but has not yet decided where to try those accused of involvement in the Sept. 11 attacks who are now held at Guantanamo Bay, government lawyers told a Senate committee on Tuesday.
Government lawyers also said they are still undecided on the constitutional impact of moving military trials to U.S. soil. ''Military commissions should be a viable, ready alternative for national security reasons for those who violate the laws of war,'' Pentagon General Counsel Jeh C. Johnson said.
But, "it is the administration view that when you direct violence on innocent civilians in the continental United States, it may be appropriate that that person be brought to justice in a civilian public forum in the continental United States.''
Johnson told the U.S. senators, many of them also lawyers, that federal civilian courts, known as Title 18 courts, appear to be the first preference "because the act of violence that was brought against civilians was a violation of Title 18 as well as an act of war.''
The setting was a hearing on how to amend the Military Commissions Act that the committee created three years ago in collaboration with the Bush White House in a bid to make a war court Supreme Court proof.
Chairman Carl Levin said the full Senate would take up the legislation next week.
Meanwhile, military judges have scheduled administrative hearings in four cases at the war court complex at Guantánamo for next week.
Those hearings are to include a military mental health assessment of two former CIA-held captives' competence to defend themselves at a proposed 9/11 mass murder tribunal. The men, Ramzi bin al Shibh and Mustafa Hawsawi, could face execution if convicted, along with confessed al Qaeda kingpin Khalid Sheik Mohammed and two other men.
But Justice Department attorney David S. Kris, head of the National Security Division, told the panel civilian and military prosecutors were still subjecting the several dozen proposed commissions prosecutions to a detailed analysis of whether captives' alleged crimes deserve trial before civilian or military juries.
''This is a fact-intensive judgment that requires a careful assessment of all the evidence,'' he said, including the identity of the victims and specific case-by-case analysis.
Kris also said trials in either format are preferable to merely holding war on terror captives as unlawful belligerents because convictions brand captives as "illegitimate war criminals.''
Neither administration attorney named a proposed U.S. venue for war crimes trials.
In the one case already decided, the White House moved a Tanzanian captive from Guantanamo to New York City for federal trial as an alleged conspirator in the 1998 East Africa embassies bombings. That man, Ahmed Ghailani, is at a federal lockup in Manhattan facing a 2010 trial date.
In his testimony, Johnson also adopted a Bush administration view that a Guantanamo detainee could be acquitted of a crime by a jury but still held indefinitely by the U.S. military on grounds he would be dangerous if set free.
Federal judges weighing habeas corpus petitions in the U.S. District Court in Washington already have the burden of deciding whether the government can defend that indefinite detention, he said, regardless of whether the captive were found innocent of a crime.
South Carolina Sen. Lindsay Graham, a Republican, former military prosecutor and champion of war crimes trials, put in a pitch for using the U.S. Navy base, saying ''the courtroom at Guantanamo Bay is uniquely set up'' to hold these trials.
But later in the hearing he appeared to contradict himself by endorsing closing the prison camps as a way of getting a fresh start with world opinion.
Obama has set a Jan. 22 deadline for closure and lawyers on all sides agreed that few of the trials could be completed by then -- especially because Congress is still debating changes to the commissions' formula.
After adoption, the judges and lawyers would then have to figure out the application to any pretrial activities, such as those to be carried out next week.
Pentagon prosecutors -- advocates for the war court -- have invited the parents of a young stockbroker killed in the World Trade Center on Sept. 11, 2001, to watch the proceedings.
Still to be decided by challenges at the trials is what constitutional rights a foreign captive held by the military might invoke, whether or not the trial is held on U.S. soil or perhaps a military base elsewhere.
Both Kris and Johnson said they imagined certain ''due process'' protections would apply.
Republican Sen. John McCain, the former Vietnam War POW and an architect of the military commissions law, said he wrote commissions law to give captives Geneva Conventions protections against torture not "the constitutional rights of U.S. citizens.''
The Navy's top uniformed lawyer, Vice Adm. Bruce MacDonald, told the senators that military judges are already grappling with the fundamental due process issue of how to evaluate battlefield evidence that doesn't follow the traditional law enforcement model that requires a Miranda warning.
He cited the example of a confession ''taken at the point of a rifle when a soldier goes in and breaks down the door, and takes a statement from a detainee'' in an ''inherently coercive environment'' -- and urged the senators to write guidelines for military judges to consider on how to evaluate whether to admit the captive's confession at trial.
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