WASHINGTON—President Bush's stunning transfer of 14 top terror suspects to Guantanamo Bay boosted hopes that, at last, the architects of the Sept. 11 attacks will be brought to justice.
But some legal experts questioned whether their trials will ever occur—and whether Bush's maneuver is merely a power play to win congressional support for special military courts similar to those already struck down by the Supreme Court.
The president's decision to move captive al-Qaida members from secret CIA prisons overseas escalates a battle with Congress over what rights terror detainees should be afforded if they were to stand trial.
The administration wants Congress to approve special procedures that would narrow these rights in the name of shielding national security secrets by excluding defendants from portions of their trials.
Administration lawyers also want to use incriminating statements that might have been coerced with interrogation techniques that Bush described as tough and safe, but others liken to torture.
Those transferred include some of the most dangerous men captured in the war on terror—among them Khalid Sheikh Mohammed, the suspected mastermind of the Sept. 11 plot, alleged hijacker coordinator Ramzi Bin al Shibh and Abu Zubaydah, a trusted associate of Osama bin Laden.
John Radsan, a former assistant CIA counsel, said Bush "is trying to raise the stakes on what type of military commission we get" in negotiations with Congress.
"Before we had Khalid Sheikh Mohammed in the mix, people were saying that the (detainees) in Guantanamo are not that important . . . We should give them the same rights that we give our uniformed people," said Radsan, who teaches at the William Mitchell College of Law in St. Paul, Minn.
"The administration will now make the argument we can't give the same military commission that we give our enlisted people to Khalid Sheikh Mohammed. That's a strong argument."
Neal Sonnett, chairman of the American Bar Association's task force on enemy combatants, said he welcomes the emergence of the detainees from secret prisons. But he said he wonders whether the move will wind up further delaying resolution of the fate of hundreds of lower-level "enemy combatants" who have been held for years at Guantanamo, with only 10 being formally charged.
"Had a proper scheme of military commissions been constructed in 2002, we probably would have been able to prosecute enemy combatants, and most of the trials would have been over by now."
Only one defendant, Zacarias Moussaoui, has been prosecuted in the United States as a result of the Sept. 11 attacks, and that took four-and-a-half years even though he pleaded guilty. Experts said that even if Congress were to endorse Bush's proposal, legal challenges would delay prosecutions of the 14 alleged terrorists for years.
In late June, the Supreme Court struck down the military commissions that the White House had put in place to deal with those captured in the war on terrorism, saying Bush lacked the authority to set up such a system on his own.
The high court also ruled Common Article 3 of the Geneva Conventions applies to the war on terror. It prohibits torture and other "outrages upon human dignity, in particular humiliating and degrading treatment."
The administration has asked Congress to fix the problem by endorsing a similar system that is already provoking new controversy. It would allow, in some instances, the court to exclude a terror suspect from portions of his trial where classified information is presented, and it would allow use of statements obtained during possibly coercive interrogations.
Bush said Wednesday that those interrogations led to numerous arrests and the disruption of several terror plots.
A senior Justice Department official, who insisted upon anonymity, said special military trial procedures are needed because "it is critically important that we maintain the secrecy of sensitive intelligence sources and methods in the war on terrorism."
The official said that statements stemming from torture would be automatically barred from use during the trials. But, the official said, military judges should decide whether to allow use of other admissions that "the accused may allege were obtained through some form of coercion."
The administration's bill would strip captives of the ability to sue in federal courts for treaty violations, while expanding the list of abuses that constitute war crimes.
"What bothers me is, I'm looking at the new bill the president has submitted, and it doesn't seem to be any better than the one the Supreme Court held to be illegal," Sonnett said.
Barbara Olshansky, a lawyer for the Center for Constitutional Rights, which represents many of the detainees, said the bill is rife with due process issues—"there's no safeguard or oversight" of their legal rights.
While administration officials said the bill embraces the Geneva Conventions, some provisions openly contradict them, said Madeline Morris, a Duke University law professor who has drafted an alternative proposal for military tribunals.
"Just asserting that the tribunals comply with the court's rulings and Geneva doesn't make it so," she said.
The Justice Department official said that the transfers were arranged because "we don't think America . . . should wait for prosecutions of some of these very significant war criminals."
But Sonnett said that, with a congressional election just two months away, the president "is trying to put the emphasis back on 9/11 and the war against terror."
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(c) 2006, McClatchy-Tribune Information Services.
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