The Wall Street Journal-20080216-Hot Topic- Torture a Likely Flash Point at Trial

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Hot Topic: Torture a Likely Flash Point at Trial

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The Pentagon charged six Guantanamo Bay detainees on Monday with war crimes for their alleged roles in the Sept. 11, 2001, terror attacks, beginning proceedings before military commissions that the government hopes will result in the prisoners' executions.

The case already has raised questions about the legality of evidence obtained by coercion. Five of the six defendants were held for years in secret Central Intelligence Agency prisons, which, unlike Guantanamo, the U.S. concealed from the International Committee of the Red Cross. Moreover, the Bush administration has acknowledged it used waterboarding, an interrogation technique that simulates drowning, on one of the defendants, the alleged Sept. 11 mastermind, Khalid Sheik Mohammed. The sixth defendant, Mohammed al-Qahtani, was subjected to extensive coercive interrogations at Guantanamo that an internal Pentagon probe concluded were "abusive and degrading."

Meanwhile, the Senate on Wednesday agreed to a House measure that would ban the CIA from using waterboarding, despite a veto threat from President Bush.

Here's a closer look:

Who is being charged? The six detainees include Mr. Mohammed, who is said to have first proposed the attacks to Osama bin Laden as early as 1996, and Mr. Qahtani, an alleged "20th hijacker" who was denied entry to the U.S. at Florida's Orlando International Airport in 2001. The other detainees allegedly ran training camps in Afghanistan, provided financing for the operations and helped the hijackers secure their entry into the U.S.

When will the trials begin? An arraignment hearing, where defendants are formally charged, isn't expected until June at the earliest. The government hopes to try all of the six defendants together, but some defense lawyers have suggested that separate trials would do more to ensure that each of the defendants receives a fair trial. The defendants are entitled to free military lawyers. They also can use civilian lawyers, if they can pass security clearances and don't charge the government for their services. The military has set up a courthouse at Guantanamo that can accommodate a joint trial of six defendants.

Are the trials public? Relatives of the Sept. 11 victims will be able to follow the trial through closed-circuit television, and lawyers, journalists and some others will be allowed to attend proceedings at Guantanamo. In announcing the charges, Air Force Brig. Gen. Thomas Hartmann said all evidence presented at trial could be reviewed by the defendants and would be subject to cross-examination, but some proceedings may be kept secret if the judge decides it is necessary.

Is the trial constitutional? In 2006, the Supreme Court struck down military tribunals President Bush authorized in 2001, in which prosecutors were allowed to use secret evidence and information gathered through coercive measures.

The justices found that the commissions violated the Geneva Conventions, and Congress later authorized a modified version of the military trials to proceed, intended to comply with the court's ruling. President Bush initially had sought to deny defendants any recourse to independent courts, but under the 2006 ruling, defendants have some rights of appeal to the federal courts.

Defense lawyers have criticized the 2006 ruling, and a case is pending at the Supreme Court that could clarify whether the Constitution applies at Guantanamo. Moreover, critics say the process has been tainted by its secrecy and by the use of coercive measures. A government interrogation log kept during the interrogation of Mr. Qahtani revealed that he was kept in isolation for weeks, subjected to forced nudity, and religious and sexual humiliation. CIA Director Gen. Michael Hayden has admitted that Mr. Mohammed was waterboarded, which many, including the former chief military prosecutor at Guantanamo, have labeled as torture, but which some intelligence officers have defended as a practice used early in the war on terror to obtain critical information.

Is waterboarding illegal? When Congress created the commissions, it provided that information obtained through certain types of coercion, including waterboarding, potentially could be admitted at the discretion of individual trial judges. But the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the U.S. ratified in 1994, forbids use in legal proceedings of any evidence taken through torture, and several former Guantanamo military prosecutors say they are governed by the treaty obligation. Either way, the case is likely to focus attention on the U.S. treatment of the defendants as well the defendants' alleged crimes.

While the U.S. used waterboarding in 2002 and 2003, Gen. Hayden told a House committee two weeks ago that he had prohibited the technique in 2006. That means the showdown between the White House and Congress over this past week's vote to restrict interrogation to the methods listed in the Army Field Manual, which doesn't include waterboarding, sets up a fight over whether such coercive techniques should be permitted in the future.

-- Nick Timiraos

POINTS OF VIEW

I was responsible for the 9/11 operation, from A to Z."

-- Khalid Sheik Mohammed

'This is a crucial milestone on the road to justice for the victims of 9/11.'

-- CIA Director Gen. Michael Hayden

FACTS

-- Among the 19 approved interrogation techniques in the Army Field Manual: separating a prisoner from other prisoners for up to 30 days and "false flag," where prisoners are led to believe that they are in the custody of another country.

-- In 1776, the Continental Congress adopted a resolution stating that anyone not owing allegiance to America, "found lurking as spies in or about the fortifications or encampments of the armies of the United States," could be punished by death under a court-martial.

-- Arizona Sen. John McCain, the presumptive Republican nominee, voted against an amendment that would forbid waterboarding and other interrogation techniques not included in the Army Field Manual, despite his position that waterboarding should be banned. Democratic candidates Hillary Clinton and Barack Obama didn't vote.

-- Throughout their detainment, several Guantanamo detainees have gone on hunger strikes, which have led the local military hospital to feed prisoners through a tube.

-- There were 275 detainees at Guantanamo Bay at the end of 2007. Since 2002, the U.S. has transferred some 500 detainees.