Agents of the Federal Bureau of Investigation continue to interview al-Qaida prisoners in Afghanistan, gathering information that could be used in the trials of suspected terrorists in the weeks to come.
The options to try non-citizens accused of terrorism range from trials in the U.S. Federal Court system to military tribunals that would be established by the Defense Department. In addition, some al-Qaida members could face trials in their home countries or be subject to international tribunals set up by the United Nations.
Many legal analysts make a distinction between al-Qaida operatives and members of the Taleban. Michael Matheson is an expert on international law at Johns Hopkins University and a consultant for the State Department. He was one of several experts who recently discussed the legal options at the U.S. Institute of Peace in Washington.
"It is possible that there may be some Taleban units, regular units of the Taleban regime, who might arguable be entitled to POW [prisoner of war] status. I suspect that most al-Qaida individuals will probably not meet the requirements that I have just spelled out with regard to non-regular armed forces."
Legal experts say members of the al-Qaida terrorist network and top officials of the Taleban are the leading candidates for trial by military tribunal. President Bush will have the final say as to whom will face a military tribunal, also known as a military commission, where the rules of evidence and burden of proof tend to favor the prosecution.
David Scheffer served as the U.S. Ambassador at Large for War Crimes during the Clinton administration. "I think there could be a case to be made that top al-Qaida leadership, captured perhaps in Afghanistan or Pakistan, somewhere in that region, might be prime candidates for a military commission [tribunal]," he said. "After all, they would be the top conspirators, the top planners, not the actual implementers on the ground, but the masterminds. And it might be that a military commission would be the most appropriate forum for them and the most realistic one."
But Ambassador Scheffer also believes that a number of suspected terrorists could be tried in the U.S. Federal Court system. Especially those already indicted, but not arrested for terrorist attacks prior to the September 11 attacks on New York and Washington.
"If you are an international terrorist and you essentially spit on the pavement, we have got you," said Mr. Scheffer. "You do not have to talk about war or anything else, we have got you. And we need to make sure that we do not undermine the potency of those laws."
But supporters of military tribunals argue that terror trials in the U.S. court system could leave jurors vulnerable to terrorist threats, and could compromise U.S. intelligence sources that would provide critical evidence. U.S. prosecutors also fear that it will be more difficult to obtain death sentences for suspected terrorists in the U.S. court system.
Deputy Assistant Attorney General John Yoo says that is one reason why U.S. officials may prefer the option of military tribunals. "I think the main problem with these different options under the international tribunals is that none of them would have the death penalty," said Mr. Yoo. "And I think, from a political perspective, it would be important for the United States to have the option of the death penalty for many of the suspects that we might want to try."
But the death penalty issue could complicate prosecutions in other ways. Many European countries, for example, are likely to reject extradition requests for suspects in their custody unless the United States agrees not to seek the death penalty.
Even under military tribunals, suspects would have the right to legal counsel, though it is still unclear what, if any, right of appeal they would have in the event of a guilty verdict.
Eugene Fidell is a Washington attorney and president of the National Institute of Military Justice. According to him, there will be plenty of lawyers willing to take on the unpopular task of defending accused terrorists. "I know a number of practitioners who are, both, criminal defense counsel in their private lives as well as reserve [military] officers are dusting off their [law] books. They are ready to roll and there will be people who will be willing to take these cases, which are likely to be among the most unpopular cases in the history of the country to defend."
The defense department is currently writing the rules for military tribunals, a process that should be completed soon.