First US war trial since World War II tests limits of fairness in terror cases

When President Bush authorized special military tribunals for alleged terrorists, his November 2001 executive order insisted that each suspect receive a "full and fair trial."

This week, the world is getting its first glimpse of how full and fair that process may be. Military prosecutors and defense counsel are squaring off for the first time in a series of hearings this week in a makeshift courtroom at the Guantánamo Bay, Cuba, naval base. The lawyers are arguing pre-trial motions involving four defendants slated to stand trial for alleged war crimes.

None of the defendants is alleged to be a particularly big fish in the hierarchy of the Al Qaeda network. But the proceedings are being closely monitored by human rights advocates and legal scholars anxious to see how US military officials intend to balance national security concerns in the war on terror against the presidential mandate of guaranteeing the defendants fair trials.

John Altenburg, a retired Army major general in charge of the commission process, has told reporters the commission rules give the military flexibility to effectively fight terror while also bringing suspected war criminals to justice. "The charter, of course, is to have a full and fair trial for each person that's brought before a commission, and we want to get that right," he says.

But critics counter that the commission process is headed for a showdown over key procedural issues that could quickly undermine any appearance of fairness. If that happens, international observers may conclude the proceedings are little more than a kangaroo court.

For example, US civilian courts and the military justice system established by Congress in 1950 require that any statements used as evidence in a trial be obtained voluntarily. If coercion is found, the statement must be barred from trial. In contrast, commission members are empowered to rely on any information that they decide "would have probative value to a reasonable person."

Even if the statement was obtained under some form of mistreatment or torture, critics say, it could still be considered by the commission, provided the commission members believe the information reliable.

"It is astounding to us that in 2004 any US court would leave open the prospect of using evidence obtained under torture or mistreatment, but that is one of the issues that presumably will be raised at these hearings," says Alistair Hodgett of Amnesty International in Washington.

The issue may be central to the Guantánamo cases because most of the terror suspects have been held without charge and repeatedly interrogated by intelligence agents for more than two years. Some were told that if they cooperated they would receive better treatment.

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