Justice At Guantanamo?

Ed Bradley Talks To Military Lawyers For GitmoTerror Detainees

(CBS)  Even though the military order prohibits any appeal to an outside court, Swift filed a historic lawsuit against President Bush and Defense Secretary Rumsfeld, saying the commissions are illegal.

"You disobeyed your commander-in-chief," says Bradley.

"Yeah, I did," says Swift. "But I didn't do so lightly. I did it because there was no other choice."

Last November, a federal judge agreed with Swift, ruling the commissions are unlawful because they are “fatally contrary” to established standards of justice. The government is appealing.

Brad Berenson, a former White House lawyer who helped draft the president’s order, says that during wartime, it’s not practical to apply those standards.

"When you’re raiding a safe house in Kabul and seizing computer hard drives and documents from an al Qaeda hideout, it’s just not realistic to treat that as a crime scene. I’ll give you another example," says Berenson.

"Entire cases against terrorists may be built based on intelligence information obtained from foreign intelligence services that would be inadmissible in a U.S. courtroom. So you can see there are enormous practical obstacles to trying foreign terrorists if you have to abide by the normal rules that apply to U.S. citizens."

Lt. Col. Sharon Shaffer, a former Air Force judge, says those rules guarantee a fair trial. She has also filed suit against the president and the commissions. "Rules and procedures apply, rights apply, and those standards can’t be ignored," says Shaffer.

Shaffer represents Ibrahim al Gosi, a Sudanese accountant also accused of being an al Qaeda member plotting to attack civilians. The government says al Gosi helped handle al Qaeda’s finances, fought in Chechnya and was a driver, bodyguard and cook for bin Laden in Afghanistan and Pakistan. Shaffer will not discuss the specifics of al Gosi’s case but denies the charges against him.

"My client does not believe that he will get a fair trial," says Shaffer, who gave up an offer to become deputy chief judge of the Air Force to work on the defense team. She says she’s been called a traitor for her efforts.

"Different people have been mandated to defend freedom in different ways, whether you’re out in the field carrying a weapon or whether you’re guarding Camp Delta down at Guantanamo Bay, Cuba," says Shaffer. "I am defending America and its principles and its notions of liberty and justice."

Her boss, Air Force Col. Will Gunn, the chief defense counsel, says he warned his team they may face criticism for doing their jobs.

"There will be people who won’t be able to understand why we’re doing what we’re doing. Why are we holding these people down in Guantanamo? We should have just lined them up and shot them," says Gunn. "I believe that if they really think about what they’re saying, that that’s not the response that we want as a nation."

Gunn, a graduate of the Air Force Academy, Harvard Law School, and a former White House fellow, says the defense team believes that the existing rules of federal courts or courts martial can handle the challenges of trying alleged terrorists while preserving their rights.

"We have a system, we have a system of justice. We hold ourselves up as the greatest nation on earth, because we say we are controlled by law as opposed to men," says Gunn. "If we can stand by that, but also live it out when we’re threatened, then we’ve done a great thing."

But Berenson says when the country is threatened, that’s when we have to be flexible and realistic so we can convict terrorists and prevent them from attacking again.

"When you’re talking about a war, the paramount concern must be the preservation of our own society," says Berenson. "All of our liberties, all of our freedoms, ultimately depend on that. You cannot be as solicitous of the rights of those accused of war crimes as you are of those accused of ordinary crimes."