In a direct challenge to their commander-in-chief, five military lawyers defending Guantanamo Bay prisoners will tell the Supreme Court today that military trials for their clients are unconstitutional.
The five, all serving military officers, will file their legal brief in support of actions brought by relatives of 16 foreign detainees at the American naval base on Cuba.
They will argue that, in banning defendants from appealing to the civilian courts, President George W Bush is claiming “monarchical” powers, to act as the defendants’ ultimate prosecutor, judge, jury, final court of appeal and, potentially, executioner.
Unless prisoners have recourse to civilian judges, they are being thrown into a legal “black hole”, say lawyers.
Over Bush administration objections, the Supreme Court has agreed to hear actions challenging Mr Bush’s treatment of Americans and foreigners designated “enemy combatants”.
One of the five told yesterday’s Washington Post that he was obeying his duties as a defence lawyer. Lt Cdr Charles Swift, assigned to defend a Yemeni inmate, added it was his duty “as a naval officer to support and defend the US Constitution”.
Lawyers sought and received Pentagon permission for their action, triggering what Lt Cdr Swift called “institutional surprise”.
Clive Stafford-Smith, one of the 16′s civilian lawyers, praised the five, saying: “This shows a lot of courage on their part.”
Two British inmates have been deemed high-risk and eligible for military trial while seven others have been declared “medium risk” and negotiations are continuing to send them to Britain.
The two are expected to plead guilty, according to official leaks. One, Moazzem Begg, has allegedly confessed to a plot to drop anthrax on Westminster from a drone aircraft, a confession Mr Stafford-Smith called “absurd”.