Questions about torture could bog down terror trials
(AP)Updated: 2006-11-03 10:30
WASHINGTON - Riddled with legal uncertainties, US military trials for 14 high-level terror suspects and other detainees could be hampered by questions about the CIA's interrogation tactics.
Military judges have wide freedom to define torture, and defense lawyers pledge to put on trial the government's treatment of detainees, particularly mock drownings and other practices banned by international treaties.
This week, attorneys for dozens of the detainees asked a federal appeals court to throw out major portions of the new military trials law, arguing the prisoners otherwise would be locked out of the regular judicial system.
"These prosecutions will be a nightmare of procedural issues and disagreements," said Stephen Saltzburg, a law professor at George Washington University who specializes in military justice. "I think military judges are going to be surprised by how many issues come up."
The Defense Department is moving to prosecute more than 70 of the estimated 435 prisoners at Guantanamo Bay, Cuba, in trials beginning as early as next spring. Officials already have selected 10 detainees for prosecution, and expect to charge another 14 high-level suspects recently transferred by President George W. Bush from CIA custody.
The group includes Abu Zubaydah, believed to be a link between Osama bin Laden and many al-Qaida cells, and Khalid Sheikh Mohammed, the suspected mastermind of the September 11, 2001, attacks in the United States. Both have revealed information in CIA interrogations that reportedly involve forced nudity, stress positions and mock drowning known as waterboarding.
Under the law signed by Bush last month, the government is barred in tribunals from using evidence that stemmed from torture. The law also prohibits evidence from "cruel and inhuman treatment" if it had been obtained on or after December 30, 2005, when Congress enacted the Detainee Treatment Act.
But coercive evidence obtained before that date could be admitted if a military judge should deem it reliable and relevant. Legal experts say that gives the judges broad discretion since the law does not define torture and almost all the evidence predates December 2005.
"Notwithstanding what Sens. Lindsey Graham and John McCain say about waterboarding being clearly prohibited, the devil is in the details," said Duke law professor Scott Silliman. He noted that Vice President Dick Cheney recently argued that tactics involving a "dunk in water" were not torture.
Silliman, a former military lawyer, said he expects almost all the evidence obtained before December 30, 2005, to be admitted under the new law. While this might boost chances for successful prosecutions of suspected terrorists, it could expose unseemly details of shadowy interrogation practices conducted by the CIA.
"Public opinion, particularly international opinion, will play a factor in whom they choose to prosecute," he said.
Among those the Pentagon has refused to say would be tried is Mohammed al-Qahtani, the suspected "20th hijacker" in the September 11 attacks. Captured in December 2001 along the Afghanistan-Pakistan border, the Saudi would not crack under normal questioning, so Defense Secretary Donald H. Rumsfeld approved harsher methods.
After FBI agents raised concerns, military investigators
began reviewing the case and in July 2005 said they confirmed abusive and
degrading treatment that included forcing al-Qahtani to wear a bra, dance with
another man, stand naked in front of women and behave like a dog.
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