WASHINGTON - The Pentagon's announcement that military prosecutors will seek the death penalty for six Guantanamo detainees accused in the 9/11 terror attacks has set in motion a complex legal conflict that is likely to put the Bush administration's interrogation practices on trial as well, military and legal specialists said.
The six defendants are accused of taking part in the 9/11 conspiracy, including financing the 19 hijackers who carried out the attacks. Five of the six spent years in the CIA's custody before being transferred to the Guantanamo prison. Last week, the CIA acknowledged that it had subjected one of them, the accused mastermind of the plot, Khalid Sheikh Mohammed, to waterboarding - simulated drowning - while questioning him.
Now, by moving forward with a high-profile joint trial of the six accused Al Qaeda members before a military commission and asking it to hand down death sentences, the Bush administration is attempting to secure a definitive legacy for its detention policy in the war on terrorism. But the trial comes at the risk that defense lawyers will use the opportunity to tear into the administration's interrogation practices, shedding light on the harsh tactics used to obtain in formation that could send the defendants to their deaths.
Eugene Fidell, president of the National Institute of Military Justice, said the strategy for the military attorneys assigned to defend the men, and any civilians who volunteer to help, would be clear: Focus on the government's harsh treatment of them to call into question the validity of the prosecution's evidence.
"By hook or by crook, you would try to get evidence of improper interrogation techniques, or coercive interrogation techniques, on the record - not just in front of the trier-of-fact, but before the court of public opinion," said Fidell, who has been a critic of the administration's detainee policy.
After 9/11, American interrogators tried to get detainees to reveal information about the plot and any planned operations by subjecting them to techniques drawn from a resistance training program developed after the Korean War to prepare US troops for abuse by enemies who do not obey the Geneva Conventions.
The techniques included prolonged isolation, sleep disruption, forced nudity, exposure to extreme heat and cold, being menaced by dogs, and being shackled in painful positions. The use of such tactics prompted internal controversy, including among FBI interrogators assisting at Guantanamo who complained that the military was using "torture techniques" that would produce unreliable information.
But the Bush administration and its defenders argued that the priority was to obtain information that might stop another devastating attack, dismissing the FBI's concerns as an outdated "law enforcement mindset." Now, however, more than six years after the attacks, the government is moving to bring six of its highest-value detainees into a courtroom - and may use some of the evidence it gained through harsh techniques to win their convictions.
Legal specialists say prosecuting the high stakes, death-penalty cases will raise tough issues about whether the coercive interrogations were legal, and whether the information obtained through them is credible.
Air Force Brigadier General Thomas Hartmann, the legal adviser to the Defense Department's Office of Military Commissions who announced the charges yesterday at the Pentagon, said it was too early to tell whether prosecutors would submit evidence obtained by coercive interrogations, and whether a judge would allow it.
"The question of what evidence will be admitted, whether waterboarding or otherwise, will be decided in the courts, in front of a judge, after it's fought out between the defense and the prosecution in these cases," he said. "That's the rule of law, that's the procedure that Congress has provided to us, and that's what we will use to finally answer these questions."
Air Force Colonel Morris Davis, the former chief prosecutor in the military commissions, said in an interview yesterday that it was likely that some of the interrogators who questioned the men would be called as witnesses in the trial of the six accused conspirators.
Davis - who resigned last fall after clashing with his superiors over what he saw as political interference and issues such as whether to introduce classified evidence behind closed doors - said he had opposed using evidence from waterboarding and hoped his successors would continue that policy. But he said information obtained by some less-harsh techniques might be acceptable.
"You can rank them from least severe to most severe, and different people will have different opinions about where to strike the line of what is acceptable and what went too far," Davis said. "Waterboarding was at the far end of that spectrum. There are a lot of areas where the prosecutor and the defense ought to battle it out in court and let the judge decide."
Prosecutors will also probably introduce further evidence against the men that was not obtained through interrogations, said retired Air Force Brigadier General Tom Hemingway, who held Hartmann's position before retiring last May.
"There is a lot of independent evidence out there apart from what might have been obtained through interrogations," Hemingway said. Still, he acknowledged, "I think it's a given that the defense counsel will try to make the debate center around interrogation techniques as opposed to the essential facts of the case."
Indeed, Eric Freedman, a Hofstra University law professor who has consulted with other lawsuits on behalf of Guantanamo detainees, said yesterday that defense attorneys would be able to easily tie the commission up in knots with pre-trial motions, challenges to the system's validity, and demands to know where and how the government obtained its information, among other things.
"It's extremely unlikely that anything will be tried by the end of the Bush administration . . . and it's virtually certain that by the next president, this will disappear because no president will want this albatross," he said.
Military commissions - trials before a panel of military officers that forgo some of the usual protections for defendants - were last used by the United States for war crimes prosecutions in the wake of World War II, before the modern laws of war were enacted.
Bush announced he would use military commissions to try suspects connected with 9/11 in October 2001. The decision was immediately controversial, with critics charging that the United States should instead use civilian courts or regular courts-martial.
The commissions have since been plagued by delays. In 2006, the Supreme Court struck down the commissions as illegal. Congress then enacted the Military Commissions Act to set up a new version of the trials.
The system has resulted in just one conviction - a guilty plea to a charge of providing material support to terrorism by David Hicks, an Australian citizen who never underwent a trial.
