WASHINGTON
The federal courts and military tribunals that will prosecute suspected terrorists vary sharply in their independence, public stature and use of evidence. But the Obama administration has so far offered no clear-cut rationale for how it chooses which system will try a detainee.
The fuzzy line drawn by the administration has made it easier for critics on both the left and right to assert that no firm legal principle is guiding the choices.
The administration has said that similarly situated suspects can be tried in either system, while others may still be held without trial because there is insufficient evidence for either proceeding, but they are considered too dangerous to release.
"I think the Obama administration is trying to straddle this debate between whether we should approach al-Qaida as a problem of massive-scale criminality or as a problem of war," said Matthew Waxman, a former Bush administration official in the State Department and the Pentagon, now at Columbia University law school.
Indeed, on Capitol Hill on Wednesday, Attorney General Eric Holder testified, "The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions."
The administration is sending professed Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged henchmen to a civilian trial in New York, while a suspect in the USS Cole bombing in 2000 and four other terror suspects will be tried by military commissions.
The major differences between the systems are the federal judiciary's independence, rooted in the Constitution and the lifetime appointments of judges, and the relaxed rules for admitting evidence in military tribunals.
Federal courts bar evidence obtained by coercion. And the new law regarding military commissions that President Obama signed last month forbids evidence derived from torture and other harsh interrogation techniques. But the commissions still have rules that allow greater use of hearsay testimony and, in some instances, could permit the introduction of coerced testimony.
Military judges ultimately will decide what evidence can be admitted, but the new law allows statements made by defendants to be used even if they are not given voluntarily in certain circumstances, including in combat situations. .
The lack of a clear explanation of the administration's choice has led some legal experts to conclude that federal courts will be used when convictions seem assured, and commissions will handle cases in which evidence is weaker.
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