Questions on torture could slow terrorism trials

updated 3:52 a.m. ET Nov. 3, 2006

WASHINGTON - 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.

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