Tribunals: trials and tribulations

WASHINGTON —

With an eye to the verdict of history, the Defense Department said Monday that the accused Sept. 11, 2001, plotters would be given an "extraordinary set of rights" when they go on trial at Guantánamo Bay, Cuba.

They will receive more rights than the top Nazis tried at Nuremberg, military officials pointed out, and far more than the plotters in the assassination of Abraham Lincoln, who were hanged within three months.

But the tribunal will be run by the U.S. military, with military lawyers and military judges. Even Defense Secretary Robert Gates has said that trials at the island prison would carry "a taint."

Those proceedings could begin as early as this summer, after the decision Monday by military prosecutors to file murder and war-crimes charges against six detainees — including self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed. Prosecutors have recommended that all six be put to death if found guilty.

The U.S. military is scrambling to assemble defense teams for the Guantánamo detainees and knowledgeable legal experts, but said it's unlikely that they can be tried speedily, meaning the cases probably won't be heard before the Bush administration leaves office next January.

"I will move as quickly as I can, but we will take our time and we will not be bullied by the government," said Army Col. Steve David, the chief defense counsel in the Pentagon's Office of Military Commissions.

"I believe this is a defining moment in our history, and we are going to take our time to do it right," he said.

" Joseph Margulies, a professor at the Northwestern University School of Law and a noted death-penalty expert, said that it would take at least a year for lawyers to familiarize themselves with the evidence against the six men.

Prosecutors face hurdles in bringing the cases, including likely battles over what evidence they'll be allowed to bring before the military commissions hearing the cases.

The law that created the commissions forbids the use of evidence gathered by torture. Last week, CIA director Gen. Michael Hayden acknowledged to Congress that Mohammed and two other CIA detainees had been subjected to waterboarding.

David, an Indiana state judge who was mobilized to his current job, said that his office has nowhere near enough staff members to handle the defense of the six Sept. 11 defendants.

He said he'd need at least six lawyers, six paralegals and six independent investigators with top security clearances to work on the trials. As of Monday morning, he said, seven military lawyers had been assigned to his office. Six of those are already assigned to other cases.

The seventh — an Army major — began work Monday, and David said he didn't know if the new man had either death-penalty defense experience or the necessary security clearances.

Only one of the six — Mohammed al- Qahtani — has seen a lawyer during his five-plus years in U.S. custody, and it wasn't clear whether that lawyer, Gitanjali Gutierrez of the New York Center for Constitutional Rights, would represent him at the tribunal.

Other lawyers said it was unlikely that private civilian lawyers would be willing to help defend accused Sept. 11 conspirators.

"You need someone who is independently wealthy and has no concern for his physical safety," said Washington, D.C., attorney David Remes of Covington and Burling, who's filed petitions on behalf of Yemenis held at Guantánamo.

"No firm with substantial resources that works for corporations is going to take the cases of these men, because being accused of plotting the 9/11 attacks is different in kind from being accused of being a mere foot soldier," Remes said. "If the accusations against these men are correct, they really are the worst of the worst."

The Military Commissions Act of 2006 prohibits federal funds from being used in the alleged terrorists' defense, which would bar the use of federal public defenders, and resources to mount a defense would be scarce even for attorneys willing to undertake the cases.

"If private counsel wants to get involved, they have to do it for free, pass around a hat, or be paid for by a private organization," said Margulies, who's handling an unrelated wrongful detention case for another Guantánamo detainee, Abu Zubaydah, who was one of the three prisoners that Hayden said was waterboarded.

Defense lawyers, Margulies said, will need at least a year to familiarize themselves with the cases against their clients, find translators with the proper security clearances to help them speak with their clients and hire investigators to review highly classified information.

When military tribunals were convened at Guantánamo nearly four years ago, the rules allowed prosecutors to use secret evidence and to consider information gathered through torture. The Supreme Court in 2006 struck down those commissions because they violated the Geneva Convention.

Under a law since passed by Congress, the Pentagon has gone a long way to change the rules governing terrorism trials. Even critics acknowledge that now they more closely mirror civilian trials or military court-martial proceedings.

Gone, for instance, are provisions allowing secret evidence. All evidence, even that considered classified by the government, must be shown to the men charged in the cases.

Gone, too, is the allowance for evidence gathered under torture. However, the question of whether prosecutors may use information obtained through controversial forms of coercion will be left up to individual trial judges.

Perhaps most important, defendants can appeal convictions to U.S. civilian courts, including the Supreme Court.

Officials involved in drafting the new rules under the Military Commissions Act of 2006 said lawmakers took as their guide the Uniform Code of Military Justice, the well-regarded system for courts martial. Some human-rights advocates have been urging the use of the military justice system for the Guantánamo prosecutions.

Still, advocates of the military commissions acknowledge that the new procedures fall short of all protections provided in civilian courts and under the Uniform Code of Military Justice.

"The rules are so loose that, you know how they say a grand jury can indict a ham sandwich? A military commission can convict that sandwich through torture and hearsay," said Jumana Musa, who has tracked the Guantánamo trials for Amnesty International.

Charging documents released Monday by the military give no indication whether prosecutors intend to use evidence gathered under coercive questioning in the trials of the six alleged plotters.