WASHINGTON—Attorney General Alberto Gonzales said Tuesday that it would be difficult to bring top al-Qaida captives, such as suspected Sept. 11 mastermind Khalid Shaikh Mohammed, to trial without a special court designed to keep secrets gathered in the war on terrorism.
His comments upped the stakes in the administration's negotiations with Congress over what kind of special military commissions would be needed to prosecute jailed terrorist suspects.
Recently, the Supreme Court rejected the idea of such courts because they had few safeguards for the accused and were set up by President Bush without congressional approval.
During a wide-ranging briefing days before the fifth anniversary of the Sept. 11, 2001, attacks, Gonzales said the administration worked over Congress' August recess to win support for legislation creating the tribunals. He said that once established, the tribunals would "allow us to bring dangerous terrorists to justice."
Such a controversial proposal, likely to provide defendants with many fewer legal rights than those offered to soldiers in traditional military courts, could draw considerable opposition in Congress.
Sen. Lindsey Graham, a South Carolina Republican and Air Force Reserve lawyer who's a key player in the negotiations with the White House, called the tribunals "very troubling" and said support for the administration's version of them would be hard to find.
Gonzales also voiced deepening concerns about the threat of homegrown Islamic terrorists being radicalized and trained over the Internet. And he said that the Justice Department would assess whether to bring U.S. charges against any suspects in the foiled, British-based plot to use liquid explosives to blow-up trans-Atlantic flights.
So far, the only person tried in the United States for involvement in the Sept. 11 hijackings is al-Qaida operative Zacarias Moussaoui, who pleaded guilty to conspiring with the Sept. 11 hijackers but was spared the death penalty by a jury last May.
Several suspected senior al-Qaida members are in U.S. custody, but none has been charged.
Gonzales noted that in the weeks after Sept. 11, there was "a great deal of discussions and debate in the administration" about whether the young Frenchman of Moroccan descent, who was arrested while taking flight lessons 26 days before the attacks, should be prosecuted in U.S. courts or before a military commission.
"The truth of the matter is, we all felt an obligation to know, was it possible to try a terrorist in (a civil court) where you might have to put at risk classified information, where that terrorist may insist on having direct access to someone that's being detained by the United States," said Gonzales, who was the White House counsel at the time.
Moussaoui and his lawyers forced a two-year legal impasse by demanding access to Shaikh Mohammed and several other suspected senior al-Qaida operatives captured and held at undisclosed sites overseas. The detainees ultimately denied that Moussaoui knew of the Sept. 11 plot. U.S. intelligence officers were holding the captives in isolation for lengthy interrogations in hopes of gleaning information that would prevent future attacks.
Gonzales said that the court decisions in the case, which ultimately forced the government to produce declassified statements from the captives, were "very helpful things to learn in bringing justice to other terrorists that we are detaining."
"I think it shows that these are very, very hard cases to make, if you think about the amount of money that was spent, the manpower used to bring (Moussaoui) to justice," Gonzales said. The government has yet to disclose the cost of the trial, in which Moussaoui wound up getting the same life sentence he would have received after pleading guilty a year earlier, but Gonzales said it was "millions of dollars."
While Shaikh Mohammed's 56-page statement was among those read at the trial, Gonzales declined Tuesday to confirm whether he's in custody. But, he said, "if we had an individual like KSM, I would suspect that we would look to see if he can be tried before a military commission."
Gonzales said that military commissions, "in a time of war," should be governed by procedures that don't force the government to decide between prosecuting terrorists and protecting classified information.
Graham said the Senate Armed Services Committee is close to reaching a consensus on a bipartisan bill that would establish the format and procedures of special military commissions for terrorism detainees, but he indicated that roadblocks remain.
While Graham said that administration officials are involved in the negotiations, he said there's disagreement over how classified information would be handled during trials before the tribunals.
Graham said he and other senators oppose an administration proposal to make such information available to the military prosecutors and defense lawyers, but not to the defendants.
"I find that very troubling," Graham said in an interview. "It raises ethical and constitutional questions. The idea of sending someone to jail based on evidence they didn't see or hear is a bridge too far for me."
Last Friday, a watchdog group from the National Institute of Military Justice urged members of the Senate committee to apply the same principles of law and evidentiary rules in any new commissions as are used for general courts-martial.
Graham said he has a separate disagreement with some Senate Democrats who want the more than 400 lawsuits filed by Guantanamo Bay detainees—most of them captured in Afghanistan—to remain on the federal court docket. Graham is pushing a compromise measure that would dismiss those lawsuits and have them refiled, but would allow them to deal only with the issue of whether a detainee is being properly held, not whether he was mistreated while in custody.
(c) 2006, McClatchy-Tribune Information Services.
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