By Jane Sutton
MIAMI (Reuters) - A pending challenge to the jurisdiction of the Guantanamo war crimes tribunals relies in part on a U.S. Supreme Court ruling that upheld the right of Santeria priests in Florida to sacrifice chickens during religious ceremonies.
The ruling was easily the most unusual cited last week in pretrial hearings for Abd al Rahim al Nashiri, a Saudi prisoner who could face the death penalty if convicted of orchestrating a suicide bomb attack that killed 17 U.S. sailors aboard the warship USS Cole in the Yemeni port of Aden.
It was part of a larger defense argument that the U.S. military tribunals at the Guantanamo Bay U.S. naval base in Cuba violate the Constitutional guarantee to equal protection under the law because only non-U.S. citizens can be tried in the tribunals.
"Mr. Nashiri has been brought before this military tribunal under an act of Congress that says he uniquely will be deprived of his life in a way that someone who simply by the accident of where they were born as a citizen of the United States who could have done identical conduct would not be," defense attorney Michel Paradis argued.
He urged the judge, Army Colonel James Pohl, to consider the precedent set by the Florida case, Church of Lukumi Babalu Aye versus City of Hialeah. Church members practice Santeria, an Afro-Cuban religion whose followers mark important occasions by sacrificing chickens, goats and other animals, putting the blood in clay pots and usually eating the meat.
In 1993, the U.S. Supreme Court unanimously struck down City of Hialeah ordinances that banned animal sacrifices while allowing commercial slaughterhouses, kosher butchers and sport fishermen to kill animals.
The ban was framed as a public health regulation but the court ruled that it unconstitutionally targeted an unpopular religious minority, noting that the Hialeah City Council had adopted the ordinances after discussing what they could do "to prevent the church from opening" in their city.
In the top-security Guantanamo courtroom and in legal briefs, Paradis drew parallels with the law that authorized the U.S. military tribunals for aliens accused of being illegal combatants for al Qaeda. He said it specifically targeted alien Muslim men, in violation of the constitutional guarantee of equal treatment under law.
"We have an invidiously discriminatory law and that's ultimately the problem," Paradis argued.
The judge has not yet ruled on the matter, and prosecutors did not mention the Lukumi Babalu Aye case in their arguments.
They said Guantanamo captives have no constitutional right to be treated equally with U.S. citizens, in criminal proceedings because the U.S. Constitution does not apply to non-U.S. citizens held outside the United States.
Paradis maintained that since the Guantanamo Bay naval base is entirely under U.S. control, it is a de facto U.S. territory and the Constitution does apply.
If the court agrees, that would throw the tribunal system into chaos as it prepares to try Guantanamo's most notorious captive, Khalid Sheikh Mohammed. The self-described mastermind of the September 11 hijacked plane attack and four alleged co-conspirators are set to appear before the same judge on May 5 for their arraignment on mass murder charges that also carry the death penalty.
Judges in two other Guantanamo cases have ruled that the Constitution does not apply to captives held at Guantanamo, with the exception of the habeas corpus right that allows them to contest their confinement before a judge.
The U.S. Court of Military Commissions Review, a Pentagon-appointed review panel that serves at the first step on the appellate ladder for convictions in the Guantanamo tribunals, upheld that ruling in both cases.
Those cases, one involving the conviction of Osama bin Laden's driver and the other involving the conviction of his media chief, are expected to be appealed to the federal appeal court in Washington D.C. and ultimately to the U.S. Supreme Court.
(Reporting By Jane Sutton; Editing by Paul Simao)