Bush's policies on detention, interrogation also on trial

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. 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, accused mastermind 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-Qaida 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 interrogation practices, shedding light on the harsh tactics used to obtain information that could send the defendants to their deaths.

Clear strategy for defense

Eugene Fidell, president of the National Institute of Military Justice, who has been a critic of the administration's detainee policies, said the strategy for the defense would be clear: Focus on the government's harsh treatment of them to call into question the validity of the prosecution's evidence.

After 9/11, U.S. 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 U.S. troops for abuse by enemies who do not obey the Geneva Conventions. The techniques included 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.

Interrogators to be called?

The Bush administration and its defenders argued that the priority was to obtain information that might stop another attack, dismissing the FBI's concerns as an outdated "law enforcement mindset." Legal specialist 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 Col. Morris Davis, the former chief prosecutor in the military commissions, said it was likely that some of the interrogators who questioned the men would be called as witnesses. Davis -- who resigned last fall after clashing with his superiors over what he saw as political interference -- said he had opposed using evidence from waterboarding. But he said information obtained by some less-harsh techniques might be acceptable.

Prosecutors will also probably introduce evidence against the men that was not obtained through interrogations, said retired Air Force Brig. Gen. 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," he 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."