WASHINGTON — Trying Guantanamo detainees in U.S. courts could prove to be a prosecutor's nightmare, haunted by allegations of torture, tainted evidence and compromised witnesses. Nevertheless, as U.S. attorneys in New York, Virginia and Washington consider whether to charge some terrorism suspects in U.S. courts, they may find comfort in their own past success.
Of 214 terrorism defendants who were prosecuted in federal courts from 2001 to June of this year, 91 percent were convicted, according to a recent report by two former federal prosecutors for the nonprofit organization Human Rights First. The reason is that prosecutors are given broad latitude in charging terrorism defendants and in presenting evidence at trial, said lawyers who are experienced with such prosecutions.
"These detainee cases present prosecutors with practical, legal, logistical and constitutional challenges," said Ken Wainstein, former U.S. attorney in Washington and former chief of staff to FBI Director Robert Mueller, "but that doesn't mean those challenges are insurmountable."
David Laufman, a former federal prosecutor in the Eastern District of Virginia who prosecuted several high-profile terrorism cases, agreed. "The evidentiary and other legal challenges are formidable in these cases," he said, "but the government has been largely successful in bringing them."
Attorneys for the current detainees and even federal judges have raised troubling questions about the quality of the government's evidence, however. Ultimately, how many detainees will be tried will depend on how the prosecutors themselves view the evidence and the effects of the Bush administration's detention and interrogation policies.
A McClatchy investigation last year found that the U.S. had wrongly imprisoned dozens and perhaps hundreds of men on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.
In one case that prosecutors are mulling, for instance, a military judge already has concluded that a confession by a detainee who was arrested as a juvenile was inadmissible because he was tortured. A federal judge recently ordered the detainee, Mohammed Jawad, released to Afghanistan for the same reason.
Nonetheless, Justice Department lawyers are considering whether to charge Jawad because of what they describe as secret new eyewitness testimony.
"Prosecutors don't rely only on the evidence as it stands at the outset of a case, but continually look to develop facts and witness testimony that will strengthen their case," Wainstein said. "There's always something more that could be out there."
However, evidence in many of the Guantanamo cases also could be in jeopardy because it was collected from a battlefield in a foreign country and routine law-enforcement practices weren't followed. Witnesses might not be able to testify or their testimony could be barred because of the potential that national security secrets would be revealed.
Prosecutors could conclude before a detainee is charged that a case can't and shouldn't be tried in federal court.
Even if they ask a grand jury to deliver an indictment, recent revelations detailing the abuse of detainees might give judges and juries pause as they weigh the guilt or innocence of former Guantanamo detainees.
Joshua L. Dratel, a New York defense attorney who's represented several terrorism suspects, including one who was acquitted, said the reaction from judges to recent lawsuits challenging the imprisonment of the detainees in Guantanamo might signal trouble for prosecutors if they took those cases to criminal trial.
"You're hearing language from judges that you didn't hear even a couple of years ago," Dratel said. "You're hearing real frustration and impatience. They're dubious, and they ought to be."
However, defense attorneys still face more challenges than prosecutors do, Dratel said.
One of the most difficult tasks for defense attorneys is to convince juries and judges to have open minds about evidence against high-profile terrorism suspects, especially in metropolitan areas in which residents have experienced attacks firsthand.
"There is a significant emotional aspect of terrorism cases that is very difficult to overcome," Dratel said. "Everybody cares about terrorism because they feel personally threatened on a certain level. It's hard to compartmentalize that."
Despite steep odds, defense attorneys do win acquittals.
Dratel said he saw "considerable hurdles" for prosecutors in the Jawad case and was skeptical of their claims that they had new eyewitness testimony that might lead to an indictment.
"The prosecution says they have new evidence after how many years?" he asked.
The fact that Jawad was a juvenile "amplifies the problems for the government and creates another basis for a judge to look at a case very differently than he would if an adult had been charged with the same conduct or after the same treatment," Dratel said.
"Minors are considered less capable of exercising independent judgment in their own interest."
Laufman said the issue of how long a detainee had been held — in Jawad's case, almost seven years — also could become a successful line of attack.
"I would expect judges to be less obliging to a government request to extend a trial date where a detainee has been in government custody for years and the government has had years to understand and perfect its evidence against a detainee," he said. "It might affect the judge's assessment of the government's credibility on various issues."
Even so, Jim Benjamin, one of two former prosecutors who worked on the report for Human Rights First, said he hadn't discovered any major terrorism cases in the past in which previous military detention jeopardized conviction.
"It's not common or easy to prosecute people in civilian courts after they are captured by the military, but it has been done successfully in the past," he said.
A U.S. district judge, for instance, rejected convicted dirty bomber Jose Padilla's speedy-trial challenge although he was held without charge as a military detainee.
In another case, Saudi officials had held Ahmed Omar Abu Ali, a U.S. citizen, without charge for months before he was transferred to a U.S. court on charges of plotting to kill then-President George W. Bush. The detainee also claimed that Saudi officials tortured him into confessing. Complicating matters further, several key witnesses were overseas, and potentially out of reach, and a foreign government that allegedly uses torture routinely had collected crucial evidence.
Despite such hurdles, the Justice Department won a conviction.
To defense attorneys, the federal courts are "the lesser of two evils" compared with the military commission system that originally was set up for Guantanamo detainees, Dratel said.
"It's a difference between a place where I have a chance and a place where I have no chance," he said.
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