U.S. is slow to begin trials of terror suspects it holds

Those prosecuted were minor figures compared with others still untried


WASHINGTON -- As the death penalty trial of Zacarias Moussaoui nears a conclusion, the biggest immediate question looming over the proceedings is whether the volatile confessed terrorist will be sentenced to death.

But in the long run, there's a more significant question: whether the government, more than four years after the Sept. 11, 2001, attacks, is using the tools of the U.S. legal system to deliver justice to the hundreds of prisoners it has captured in the war on terror whom it is confining in the U.S., at Guantanamo Bay, Cuba, and at undisclosed locations around the world.

There's little sign that it is.

Key al-Qaida leaders, including Sept. 11 attack mastermind Khalid Shaikh Mohammed, remain in secret overseas prisons with no indication that they will be tried soon, if ever.

Despite promises of swift adjudications, only 10 of the hundreds of prisoners at the Guantanamo Bay naval base have begun trials before specially designed military commissions.

None of the commission trials is complete, and the system is the subject of a challenge before the Supreme Court.

The Bush administration points to a number of successful terrorism prosecutions in Virginia, Buffalo, Portland, Ore., and other locations. But targets in those domestic cases were minor figures compared with many of those in custody, such as Mohammed.

"I think their first concern is security," said former Sen. Bob Kerrey, a Nebraska Democrat and a Sept. 11 commission member. "I don't think they're worried about justice, or, I think, justice is a significantly lower priority." Kerrey said the concern is understandable but needlessly sacrifices U.S. standing internationally. "I think we've lost a lot in the court of public opinion."

Kerrey and a fellow commission member, former Rep. Timothy Roemer, an Indiana Democrat, said they think the United States should put Mohammed on trial.

"If the courts and the criminal justice system can handle a figure like Moussaoui, who's on the margins [of the Sept. 11 plot], it should be able to work with somebody more compelling like KSM," Roemer said. "I don't understand why they don't try the person who originated the plot."

He questioned how much intelligence value Mohammed has, especially as it probably would take at least another year to prepare for a trial.

Justice Department spokesman Brian Roehrkasse declined to comment on Mohammed's status.

But department officials acknowledged that the government's anti-terrorism strategy involves removing enemy combatants from the battlefield and extracting all possible intelligence, and only then worrying about trying them.

"The U.S. government must possess the flexibility to use every single tool necessary to prevent acts of terrorism in our homeland," Roehrkasse said.

Critics charge that the purported need for flexibility masks the lack of a coherent strategy except for an attempt to preserve and expand presidential power.

"They want to maintain all options without worrying about whether the exercise of those options will be perceived as consistent with international and domestic law," said Douglass Cassel, director of the Center for Civil and Human Rights at the University of Notre Dame Law School.

Indeed, some terror prosecutions appear to have bent or broken the law.

In the Moussaoui case, a government lawyer improperly coached witnesses, prompting the judge to temporarily halt the trial and limit testimony.

Also last month, a former federal prosecutor, Richard Convertino, was charged with obstruction of justice for allegedly concealing evidence helpful to the defense in the so-called Detroit sleeper cell case in 2003, the first major terror trial after Sept. 11.

There is also widespread concern among human rights advocates and lawyers for detainees that key al-Qaida leaders such as Mohammed might have been tortured, thus tainting evidence they might supply.

Kerrey said that should not be allowed to impede a trial of Mohammed.

"There's an awful lot of reliable evidence out there in the open," he said.

Andrew Zajac writes for the Chicago Tribune.

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