Riddled with legal gray areas, U.S. military trials for 14 high-level terrorism suspects and other detainees could bog down over questions about the CIA’s interrogation tactics.
Military judges have wide freedom to define what is torture. And defense lawyers pledge to put on trial the government’s treatment of prisoners, particularly mock drownings and other practices banned by international treaties.
This week, attorneys for dozens of the detainees asked a federal appeals court to strike down key 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 have already selected 10 prisoners for prosecution, and expect to charge another 14 high-level suspects recently transferred by President 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 Sheik Mohammed, the suspected mastermind of the Sept. 11, 2001, attacks. 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 any evidence stemming from torture. The law also prohibits evidence from “cruel and inhuman treatment” if it was obtained on or after Dec. 30, 2005, when Congress enacted the Detainee Treatment Act.
‘The devil is in the details’
But coercive evidence obtained before that date could be admitted if a military judge deems it reliable and relevant. Legal experts say that gives the judges broad discretion since the law doesn’t 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” weren’t torture.
Silliman, a former military lawyer, said he expects almost all the evidence obtained before Dec. 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 declined to say would be tried is Mohammed al-Qahtani, the suspected “20th hijacker” in the Sept. 11 attacks. Captured in December 2001 along the Afghanistan-Pakistan border, the Saudi wouldn’t crack under normal questioning, so Defense Secretary Donald H. Rumsfeld approved harsher methods.
The al-Qahtani case
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.
While the Pentagon determined “no torture occurred,” the findings were aired in high-profile congressional hearings in 2005 that drew intense scrutiny from human rights groups. A new U.S. Army manual released in September — which doesn’t apply to the CIA — now bans torture and degrading treatment, for the first time specifically mentioning forced nakedness, waterboarding and other tactics.
“Al-Qahtani is one who would cause us embarrassment if he is tried,” Silliman said.
A Pentagon spokesman, Navy Cmdr. Jeffrey D. Gordon, said he could not comment on specific cases such as al-Qahtani’s unless they are formally charged. He said prosecutions will be made “based on the facts and the law.”
“We are giving the most egregious terror suspects, those accused of law of war violations, their day in court,” he said.
Doubts from the defense
Wells Dixon, an attorney for the Center for Constitutional Rights, isn’t so sure. His group represents many of the Guantanamo prisoners, and they are trying to stop the military trials immediately by getting the new law thrown out as unconstitutional.
One of the law’s most controversial provisions bars Guantanamo prisoners from challenging in federal court their indefinite detentions as “enemy combatants.” The law instead authorizes three-officer military panels to review whether there is sufficient evidence to justify the detention.
The Center for Constitutional Rights successfully sued twice before over the right of habeas corpus, a basic tenet of the Constitution protecting prisoners from unlawful imprisonment. Their efforts prompted Supreme Court rulings in 2004 that said foreign-born terrorism suspects at Guantanamo could have access to U.S. courts.
The rulings left open the possibility that “a properly constituted military tribunal” might suffice as a substitute. But several legal experts and Senate Judiciary Committee Chairman Arlen Specter, R-Pa., who voted for the new law, say the three-member panels rest on shaky legal ground.
In a filing Wednesday, retired judges from both political parties joined attorneys for the detainees in saying the new law “raises grave constitutional concerns” because it would let authorities use evidence that was gleaned from torturing prisoners.
The Justice Department has until Nov. 13 to respond in the case, which is pending before the U.S. Court of Appeals for the District of Columbia Circuit.
“One of the issues litigated will be whether certain techniques constitute torture,” Dixon said. “I fully expect we will learn that many of the detainees who are held in secret prisons are subjected to waterboarding, prolonged isolation and perhaps forced medication.”
“We will put the United States on trial for this,” he said.
Padilla lawyers seek dismissal
In a sign of that emerging strategy, lawyers for alleged al-Qaida suspect Jose Padilla asked a federal judge in Miami last month to dismiss his terrorism case in criminal court, arguing that he was tortured and force-fed psychedelic drugs at a U.S. military brig for more than three years.
“The torture took myriad forms, each designed to cause pain, anguish, depression and ultimately, the loss of will to live,” Padilla’s attorneys said in their motion, citing prolonged sleep deprivation, exposure to extremely hot and cold temperatures and shackling in stress positions.
Michael Greenberger, a former Justice Department attorney who is now a law professor at the University of Maryland, said he believes public sentiment may prove to be the deciding factor as judges sort out the legal gray areas.
“People are going to be all over these proceedings,” he said. “The human rights groups are upset. Civil libertarians are upset. You’ve got the worldwide community looking at this as something coming from outer space. This will not be done under cover of darkness.”