Al Qaeda's Nuremberg? The arrest of Osama bin Laden's reputed No. 3 commander again raises a vexing issue: what will America do with captured Al Qaeda leaders?
WEB EXCLUSIVE By Michael Isikoff <http://msnbc.msn.com/id/4863599/site/newsweek/> and Mark <http://msnbc.msn.com/id/4901246/site/newsweek/> Hosenball Newsweek Updated: 7:25 p.m. ET May 4, 2005 May 4 - The arrest of a top deputy to Osama bin Laden this week raises anew an issue that has bedeviled Bush administration officials for some time: what will America ultimately do with captured Al Qaeda leaders after they have been milked for all the intelligence they have to offer? The apprehension in Pakistan of Abu Faraj al-Libbi, reputed to be Al Qaeda's No. 3 commander, is only the latest in a series of "big catches" announced by U.S. counterterrorism officials since the American invasion of Afghanistan in the fall of 2001. Spirited away to secret locations overseas and reportedly subjected to extreme interrogation techniques under the murkiest of rules, the captured Al Qaeda leaders include most of those believed to be directly responsible for the September 11 terror attacks with the notable exception of bin Laden and his top deputy Ayman Al-Zawahiri. But even as President George W. Bush today hailed al-Libbi's arrest as a "critical victory in the war on terror," a number of top counterterrorism officials are increasingly frustrated over the lack of any plans to put top Al Qaeda leaders on trialeither in special military tribunals that were authorized by Bush in November 2001 or in civilian courts. Sources tell NEWSWEEK that administration lawyers have made virtually no headway in resolving the dilemma. In part, this is because of continued arguments by the U.S. intelligence community that "high value" prisoners such as 9/11 master planner Khalid Shaikh Mohammed, who was captured in March 2003, may still yield useful information about Al Qaeda plans and operatives that can help thwart future attacks. But that line of argument becomes harder to sustain as time goes on and the information known to captured detainees such as Mohammed, Ramzi bin al-Shibh (another key 9/11 planner) and Mustafa Ahmed al-Hawsawi (the alleged 9/11 paymaster) becomes inevitably outdated. "At a certain point, whatever residual intelligence value they have is far outweighed by their value as defendants," said Brad Berenson, a former White House lawyer who worked on President Bush's order authorizing the creation of military tribunals in the fall of 2001. Berenson now advocates a mass Nuremberg-style trial of Al Qaeda leaders. Another reason for pressing the issue relatively soon, some officials say, is the recent guilty plea of accused 9/11 co-conspirator Zacarias Moussaoui. His case now enters a new phase in which prosecutors will argue that Moussaoui, who played a peripheral role in the 9/11 conspiracy at best, should be executed while the actual architects of 9/11 remain alive indefinitely with no apparent plans to even put them on trial. Aside from the fundamental inconsistency in the U.S. government's position, the lack of trial plans for top Al Qaeda leaders could gravely undermine the position of prosecutors in court: under federal death penalty law, if defense lawyers can establish that Moussaoui's superiors such as Khalid Shaikh Mohammed and Ramzi bin al-Shibh are in U.S. custody and are not facing death, it would count as a "mitigating factor" that could help Moussaoui avoid execution. The internal tensions over what to do with top Al Qaeda leaders became briefly visible last year when FBI Director Robert Mueller told reporters that the bureau was gathering evidence for use in a possible military tribunal case against Mohammed and other high-value detainees. "I would expect that there would be tribunals at some point," said Mueller in response to a reporter's questions about whether Mohammed and others would face trial. But within hours of those remarks, Mueller aides and administration officials quickly moved to tamp down any speculation that trials of the real perpetrators of the 9/11 attacks were anywhere close to happening. In fact, administration officials told reporters, no decisions had been made or were even being contemplated. If anything, the difficulties in bringing top Al Qaeda leaders to trial have only grown since then. The constitutionality of the military tribunals authorized by Bush is being challenged in the federal courts by lawyers for accused detainees. Even more significantly, in the wake of the Abu Ghraib scandal, there have been a series of disclosures that White House and Justice Department lawyers approved the CIA 's use of a number of extreme interrogation techniques against top Al Qaeda detainees. These include "water boarding" in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown. Some lawyers say any trial of Khalid Shaikh Mohammed and others even in military tribunals would open the door for their defense lawyers to potentially embarrass the U.S. government by introducing evidence to suggest that their clients had been tortured by CIA interrogators in violation of international law. In part, the Bush administration may dodge the bullet in the case of Abu Faraj al-Libbi, or "the Libyan," as he is known, by simply deciding not to press for custody of him. The Al Qaeda commander was captured by Pakistani security forces after a firefight on Monday involving a group of terrorist operatives in Pakistan's North West Frontier Province. In the past, the Bush administration successfully pressed Pakistani authorities to turn over to American representatives-usually the CIA-high-level Al Qaeda operatives such as Mohammed and al-Shibh. But in this case, a U.S. official said, the Pakistanis have good reason to want to hold al-Libbi themselves and possibly put him on trial in Pakistan. Pakistani officials have accused him of orchestrating two December 2003 assassination attempts against Pakistan's president, Gen. Pervez Musharraf. Reports from Pakistan also describe al-Libbi as a major suspect in other terrorist attacks in Pakistan, including the attempted assassination of the country's prime minister last year and several bombings. Officials in Washington say the administration appears to be content to allow the Pakistanis to hold al-Libbi so long as U.S. interrogators get access to him. Closely allied with Musharraf, the American government is confident it will get such access. Al-Libbi is important because some U.S. intelligence officials describe him as just below bin Laden and Al-Zawahiri in importance. Considered an Al Qaeda fixer who also had an "operational planning role," al-Libbi is said by some U.S. authorities to have moved into the bin Laden network's top leadership to replace Mohammed, Al Qaeda's top field commander. U.S. officials say they have reason to believe that al-Libbi directly participated in the planning for post-9/11 attacks inside the United States, possibly during last year's presidential-election campaign and between Election Day and Bush's second inauguration. No such attacks occurred. Some officials said intelligence may tie al-Libbi to an Al Qaeda computer expert who was arrested in Pakistan about a year ago. That expert was allegedly in contact with a suspected terrorist cell in London whose leaders included an associate of Mohammed who allegedly visited the U.S. prior to 9/11 to conduct surveillance of financial targets in New York, New Jersey and Washington. Officials declined to give any further details on the purported plots or threats that al-Libbi allegedly was orchestrating against the U.S. mainland. URL: http://msnbc.msn.com/id/7739321/site/newsweek/ [Non-text portions of this message have been removed] ------------------------ Yahoo! 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