Prosecuting Terrorist Trials in U.S. Courts Poses Tremendous Hurdles

Interrogation techniques used against Guantanamo Bay detainees will not hold up in civilian court, says a former federal prosecutor in Alexandria.
Interrogation techniques used against Guantanamo Bay detainees will not hold up in civilian court, says a former federal prosecutor in Alexandria. (By Brennan Linsley -- Associated Press)
By Jerry Markon
Washington Post Staff Writer
Friday, March 6, 2009

When suspected al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri was indicted on criminal charges last week, the Obama administration said it was sending a message that the U.S. courts can deal with terror suspects.

But Marri says he was subjected to painful stress positions, extreme sensory deprivation and violent threats and was denied access to lawyers when he was held in a military brig in South Carolina. Those claims are likely to become part of his defense against charges of conspiracy and providing material support to terrorists.

As the Obama administration wrestles with what to do with the detainees at the prison at the U.S. Naval Base in Guantanamo Bay, Cuba, officials will be closely monitoring how Marri's case winds its way through the U.S. courts.

In a recent executive order, President Obama vowed to close the facility within a year. Although the administration has not ruled out other possibilities for prosecuting the approximately 245 detainees, including military courts-martial, the order cites only federal courts, and Obama has praised how they handle terrorism cases.

Any plan for terrorism trials in federal courthouses would face extraordinary difficulties, lawyers say. Much of the evidence is classified, and key witnesses are reluctant to testify. Government secrets can be spilled. Litigation can be expensive and stretch for years. Security is a nightmare.

The Guantanamo detainees pose hurdles on a scale rarely seen. They were arrested mostly in Afghanistan and were interrogated there and in Cuba by soldiers and agents more focused on stopping attacks than reading the detainees their rights. Much of the evidence is expected to come from their own statements, and those will be thrown out -- along with leads derived from the interrogations -- if the detainees were coerced.

"It could be a total mess," said Scott L. Silliman, a former military lawyer who teaches national security law at Duke University. "It's going to be tremendously complex."

While the Marri case can serve as a guide, the cases of the Guantanamo detainees are even more complicated. Some of them were subjected to waterboarding, sleep deprivation and other methods forbidden in U.S. courts, where even mildly coercive treatment can get a case thrown out.

"The Gitmo detainees will be even more difficult to prosecute in civilian court than al-Marri," said Andrew McBride, a former federal prosecutor in Alexandria and a national expert on the rules of evidence. "Many of them were captured by the military and were subjected to interrogation techniques which might meet Geneva Convention standards but will not hold up in civilian court."

Mary Jo White, who as U.S. attorney in New York brought some of the nation's biggest terrorism cases, said interrogation issues "could greatly complicate things, because you can't use what may be your very best evidence." She said prosecutions have grown more difficult since the Sept. 11, 2001, attacks because there is more sensitive national security information.

Despite the complexities, other experts say that U.S. prosecutors and judges have gained experience with national security cases and that giving due process to terrorism suspects shows the strength of the justice system. Detainees would have the same rights as any criminal defendant, including the ability to represent themselves and be released if found not guilty.

"Courts have handled these cases very well," said Richard Zabel, a former federal prosecutor who co-wrote a study last year for Human Rights First that concluded that federal courts are well equipped for most terrorism cases. "The system is not perfect, but in the terrorism area, it has evolved."

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