New policy on tribunals considered

Prisoners would be tried without war-crimes proof


WASHINGTON -- Uncertain about how they will be able to prosecute many of the nearly 300 prisoners detained at a naval base in Cuba, administration officials are considering a new legal doctrine that would allow prisoners to be brought before military tribunals without specific evidence that they engaged in war crimes.

The new approach would make it an offense to have been a senior member or officer of an al-Qaida unit that was involved in any of the regular crimes of war, such as mistreatment of civilians.

An administration official said the effort came out of increasing uneasiness that the interrogations of the prisoners, who were taken from Afghanistan to the naval base at Guantanamo Bay, had not yielded enough information to charge many with traditional war crimes.

The official, who spoke on condition of anonymity, said the questioning was going slowly and the prisoners were largely uncooperative. No one, the official said, has confessed to any atrocity or violation of the laws of war.

Nor have the interrogators had much success in getting prisoners to provide information that could be used against other captives, the official added.

Another official said the new approach would allow military prosecutors to charge captives without evidence from witnesses or documents that they committed war crimes.

"It could be enough to show that they were part of a group and furthered its aims," this official said. "They would be shown to be a part of a group that did things like killing civilians and noncombatants, attacked targets with no military value or took or killed hostages" -- the traditional roster of war crimes.

Officials said the legal mechanism for charging someone with being a member of an al-Qaida unit involved in crimes was not complete but would probably be detailed in a document to guide military prosecutors.

Professor Detlev E. Vagts of Harvard Law School, an authority on the law of war, said that the government appeared to be trying to build a military version of the civilian charge of conspiracy.

The unease about what to do with the prisoners is occurring after the administration spent considerable effort drafting regulations for the military tribunals. A government lawyer said White House officials were becoming increasingly concerned that the tribunals, authorized despite great criticism, might not be put to much use.

But that seems unlikely, officials said, with the capture in Pakistan last month of Abu Zubaydah, believed to be the director of operations for al-Qaida and thus the highest-ranking official of that organization in U.S. custody. Zubaydah, Justice Department officials have said, is a near-ideal candidate for a tribunal trial.

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