BALTIMORE: The US has a reputation for a fair criminal justice system. So should the Guantanamo Bay detainees rest easy? The Bush administration is trying to create new rules for the military tribunals that are intended to try suspected terrorists. These proposed rules would allow military prosecutors to charge detainees without evidence that they had committed war crimes.

The detainees, who have not been charged, are not confessing to atrocious war crimes in quite the way the administration had hoped. Frustrated with the lack of information obtained during four months of interrogation, officials appear to be worried that they have insufficient evidence to put many detainees on trial, perhaps thinking what’s the use of creating a military court if the government cannot find any terrorists it can convict?

According to a New York Times report citing unidentified Bush administration officials, regulations are being considered that would lower the standards for trying a suspect.

The new legislation would make it a crime simply to have been a member of Al Qaeda and to have furthered its aims in an “identifiable” way.

But the administration has a problem. The proposed rules would criminalize behaviour that sounds suspiciously like a ”status crime.” Such crimes are a catch-all that allow people to be detained by their appearance or association with a particular group - what Black’s Law Dictionary refers to as one’s “personal condition.”

There’s the rub. The Supreme Court repeatedly has struck down the practice of detaining someone based on this standard. For example, in Robinson vs California (1962), the court ruled that a status or condition alone cannot be considered a crime.

In Chicago vs Morales (1999), the court upheld the decision of the Illinois Supreme Court to strike down the “Gang Congregation Ordinance,” which gave police officers wide discretion to arrest anyone who appeared to be a member of a gang.

In its decision, the state Supreme Court wrote, “Our constitutional standards, fortunately, do not slide up and down according to the gravity of the crime problem we wish to combat. If it were otherwise, the fundamental ideals on which this country is based would slowly deteriorate.” —Dawn/LAT-WP News Service (c) The Baltimore Sun.