United States:Despite tightened rules the public may never be convinced trials will be fair, write Peter Spiegel and David Savage.
With an eye to the verdict of history, the US defence department said on Monday that the alleged September 11th, 2001, plotters would be given an "extraordinary set of rights" when they go on trial at Guantánamo Bay.
They will receive more rights than the top Nazis tried at Nuremberg, military officials said, and far more than the plotters in the assassination of Abraham Lincoln, who were hanged within three months.
But the tribunal will be run by the US military, with military lawyers and military judges. Even defence secretary Robert Gates has said that trials at the island prison would carry "a taint".
The proceedings could begin as early as this summer, following the decision on Monday by military prosecutors to file murder and war crimes charges against six detainees - including self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed. Prosecutors have recommended that all six be put to death if found guilty.
When military tribunals were convened at Guantánamo nearly four years ago, the rules allowed the use of secret evidence and to consider information gathered through torture. In 2006 the Supreme Court struck down those commissions because they violated the Geneva Conventions.
Under a law since passed by Congress, the Pentagon has gone a long way to change the rules governing terrorism trials. Even critics acknowledge that now they more closely mirror civilian trials or military court-martial proceedings.
Gone, for instance, are provisions allowing secret evidence. All evidence, even that considered classified by the government, must be shown to the men charged in the cases. Gone, too, is the latitude granted for evidence gathered under torture.
However, the question of whether prosecutors may use information obtained through controversial forms of coercion - particularly the simulated drowning practice called waterboarding, will be left up to individual trial judges. Perhaps most importantly, defendants can appeal convictions to US civilian courts.
Despite the tightened rules, public opinion might never be persuaded that the trials of some of the world's most notorious suspects will be fair and credible.
"It will never be judged to be legitimate, not by those who despise us . . . not by our staunchest allies," said Jack Cloonan, a former FBI agent assigned to the Osama bin Laden squad in the New York field office.
Officials involved in drafting the new rules under the Military Commissions Act of 2006 said lawmakers took as their guide the Uniform Code of Military Justice, for courts-martial.
Some human rights advocates have been urging the use of the military justice system for the Guantánamo prosecutions.
Charles D "Cully" Stimson, who oversaw detainee affairs at the Pentagon until resigning last year, said that courts-martial and the military commissions were "virtually identical in 98 per cent of the rules". Still, advocates of the military commissions acknowledge that the new procedures fall short of all protections provided in civilian courts and under the Uniform Code of Military Justice.
The Guantánamo commission rules allow for more liberal use of hearsay evidence. Conversely, in other US courts almost all testimony gathered under extreme duress would be ruled out automatically - not left up to the discretion of the trial judge.
Questions concerning information-gathering techniques could become particularly contentious, given the recent CIA admission that three detainees - including Mohammed - were subjected to waterboarding, a practice that administration officials say has led to a treasure trove of intelligence.
Charging documents released Monday by the military give no indication whether prosecutors intend to use evidence gathered under coercive questioning in the trials of the six.
Air Force Brig Gen Thomas Hartmann, one of the military lawyers who will decide whether the cases can proceed to trial, told reporters at the Pentagon that he did not know yet whether such evidence would be used.
But he defended the practice, noting Congress explicitly allowed for a trial judge to decide whether information gleaned through questionable interrogation tactics should be allowed.
But just as it has taken years for the alleged 9/11 conspirators to be charged, there is no assurance the six will see the inside of a courtroom any time soon.
The law that tightened the tribunal process also bars detainees from challenging their imprisonment in court. But the Supreme Court is considering a challenge to that prohibition. If the justices agree that legal claims from Guantánamo may be heard, lawyers for the 9/11 plotters might go to court and try to head off a trial for their clients before they reach a military commission.
- (LA Times-Washington Post service)