Afghan detainees pose legal bind

Civil rights criticism is least of Pentagon worries - what's the crime to be tried?

The US military is finding out it's not so easy being the jailer of last resort for prisoners from Afghanistan. Last week everyone from human-rights groups to European governments stepped up their criticism of the Pentagon for its treatment of the captives.

But while the public attention focuses on shackles and wire-mesh cages at Gauntanamo Bay, Cuba, the Pentagon may ultimately face a far harder problem with the prisoners it is now holding - actually getting convictions.

Military law experts say it will be difficult to prove any of the more serious offenses the prisoners might be charged with - whether it be conspiracy, murder, or some other war crime.

One problem is simply getting anyone to talk. Unlike American Taliban John Walker Lindh, who allegedly spoke freely with FBI investigators, analysts say US authorities are likely to have less success with other detainees, who don't trust the US justice system and don't speak English.

Ideological fighters, too, are less likely than most criminal defendants to cooperate in making plea agreements. "The usual dynamic that the government is engaged with - trading leniency for information - may not operate," says Eugene Fidell, a lawyer with the nonprofit National Institute of Military Justice.

Without incriminating interviews or deal cutting, the US will have to rely more on documents and computer records seized in Afghanistan to link detainees to Al Qaeda terrorist activities.

Ultimately, of course, how difficult it will be for the US to make a case against any of the captives will depend in part on how they're classified and what crime they're charged with.

So far, Defense Secretary Donald Rumsfeld has insisted the detainees are "unlawful combatants," a designation usually reserved for mercenaries and spies rather than prisoners of war. Anyone designated a POW qualifies for additional protections under the Geneva Convention, which could make evidence-gathering more difficult.

But the US classification could change as future captives from Afghanistan create a mix of Taliban soldiers and Al Qaeda members, and pressure builds to classify them all as prisoners of war. Last Tuesday, a coalition of religious and civil rights groups asked a federal judge in Los Angeles to require the government to bring the suspects before a civilian court and define the charges against them.

Over the weekend, published reports indicated that Secretary of State Colin Powell has requested that all the detainees be classified as POWs.

At issue is the legal protections the detainees will receive, and what types of evidence can be used against them.

POWs can only be tried in the same forum as US military personnel - court martials. They're also entitled to be represented by the attorney of their choice and appeal the decision of the court martial. In contrast, unlawful combatants can be tried in any of the three possible forums: civil courts, court martial or military commissions, says Sean Murphy, a law professor at George Washington University Law School.

In this instance, military law experts say, high ranking Al Qaeda fighters are more likely to be classified as unlawful combatants, while Taliban are more likely to be labeled prisoners of war. The harder cases will be high-ranking Taliban fighters who might have helped Al Qaeda or lower ranking Al Qaeda members who didn't know much about the organization's activities.

Perhaps most importantly, the Geneva Conventions require prisoners of war be returned at the cessation of hostilities while no provision requires the return of unlawful combatants. That could allow the US military to hold dangerous prisoners designated unlawful combatants far longer.

Last week, members of Congress visiting Guantanamo said interrogations of the detainees had yielded valuable information to prevent future attacks but such information wouldn't be used in prosecuting them.

Obtaining convictions might be somewhat easier before the military commissions President Bush created in November.

Under that original order, rules for admitting evidence were more lenient and defendants couldn't appeal the final ruling.

The final rules are still being drafted, but military commissions will judge conspirators under a looser standard of responsibility. A commander who knew - or should have known - that illegal acts by people under his authority were committed and didn't stop it can be held liable. The government wouldn't need to prove the defendant engaged in any overt act himself, says Gen. Joseph Barnes, a former Army judge advocate.

That theory was used to convict high-ranking Japanese General Yamashita at the end of World War II and could possibly be used against Taliban Chief of staff, Mullah Fazel Mazloom, who was reported by the Miami Herald to be held at Guantanamo.

If convictions don't look likely in any American court, the US may send the Guantanamo prisoners, who are from 25 different countries, back home to face trial before their own governments.

"I believe after the interrogation process there's going to be a distinction made as to whether, number one, these people should be sent to their countries," Sen. James Inhofe said Friday during a visit to Guantanamo.

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