Justice At Guantanamo?

Two months after 9/11, President Bush issued a military order that said that any foreigner he believes might be a terrorist or might help a terrorist could be tried for war crimes by military commissions.

Last used during World War II, the commissions are designed to deliver swift, effective punishment, but they dispense with some of the basic rights and rules of evidence that protect the innocent in American courts.

And that's raised concern both abroad and at home. So far, only four of more than 500 prisoners being held at Guantanamo Bay, Cuba, have been charged with war crimes. And so far there have been no military trials. They have been shut down because of a suit filed against the president by a member of what may seem like an unlikely group of opponents: U.S. military lawyers. Correspondent Ed Bradley reports.

Does he believe that the prisoners in Guantanamo are getting a fair shake? "Under the rules, as they're written right now, no way," says Swift. "The rules are written from the -- to make every possible accommodation for the prosecutor, with no thought to, 'Does this jeopardize a right of the accused?'"

Swift represents Salim Hamdan, a Yemeni and one of Osama bin Laden's former drivers, an accused al Qaeda terrorist charged with plotting to attack American civilians. Swift says Hamdan is not an al Qaeda terrorist, but an innocent bystander in the Sept. 11 attacks.

Did Hamdan not know that bin Laden was a terrorist? "He had heard news reports," says Swift. "But for him, he was an employer."

"So he was his driver, but wasn't a member of al Qaeda?" asks Bradley.

"Absolutely not," says Swift, who adds that Hamdan didn't receive any military training.

"You said that your client was in a compound with bin Laden on Sept. 11. What does he say about that day?" asks Bradley.

"He heard about 9/11 on an Afghan radio, and when he saw Osama bin Laden dancing and happy, and he put the two together, he realized that war was coming and that he had gotten sucked into this thing," says Swift.

Prosecutors won't discuss their case against Hamdan, but in court papers, they say he did receive military training at an al Qaeda camp and also delivered weapons. Hamdan has been held without trial in Guantanamo for more than three years.

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."

The war crimes trials, if they proceed, will take place in this courthouse at Guantanamo Bay. Under the military commission rules, the defendant is presumed innocent until proven guilty beyond a reasonable doubt. Up to seven military officers appointed by the Pentagon will act as both judge and jury. Instead of a unanimous verdict to convict, it takes only a two-thirds majority. The death penalty requires a unanimous verdict from a full, seven-member panel. Appeals can be made to a panel appointed by the secretary of defense, but the president has the final say.

Lt. Col. John Einwechter, a commission prosecutor, defends the commissions and says they should go forward.

"I've got your colleagues, in uniform, telling me that, 'We've looked at the rules, we've looked at the laws. These aren't fair trials,'" says Bradley.

"That is the function of the defense counsel. And I think, if anything, their comments regarding the system show that they are truly independent," says Einwechter. "But what the critics need to do is allow this process to work, watch it in operation, and what they will see are fair trials that bear resemblance to a trial that they're accustomed to."

In most trials, defendants have a right to see all the evidence against them. But in a military commission, although the defense attorneys can see classified evidence, they can't discuss it with their clients.

"How is he then supposed to defend himself?" asks Bradley.

"There will be circumstances in which classified evidence will be presented that the accused will not be given access to," says Einwechter. "Remember, al Qaeda continues out there to plot against the United States and to plot terrorist attacks against our country. It's essential that we strike a balance in a way that preserves our national security, while providing a fair trial."

How does that affect his defense? "Well, it makes it impossible. How you do cross-examination is you look to your client and say, 'Did you ever meet that man? Does he like you? Does he dislike you? Are there things that he's saying that aren't true?'" asks Einwechter. "What they do here is they make a mockery of what defending a man is."

The rules permit hearsay evidence, unsworn statements ands even statements taken under duress. The standard is any evidence the panel considers relevant and reasonable.

"That leaves a huge hole as to what types of evidence will come in, whether or not it was taken or obtained via some sort of coercion, mistreatment or even torture for that matter," says Shaffer.

"If there is evidence such as a confession that is obtained by torture, that is suspect, or that is tainted, it's up to the judges on the commission to consider the extent to which it's suspect or tainted, and give it appropriate weight accordingly," says Berenson.

And then there's this: if a defendant is acquitted, he can still be sent back to detention at Guantanamo Bay until the war on terror is over, which may be decades.

"If your client is ultimately acquitted, and then, just to be told that they're going to continue to be detained, the question you ask is, then what is this all about? What is this for?" asks Shaffer.

"If Salim wins, does he get anything? No, he goes back to the same cell. So it seems awfully a lot for show, doesn't it?" says Swift.

"Is that fair? I mean, they come in, they're found not guilty, by your rules. Why shouldn't they walk?" asks Bradley.

"If you're acquitted by a military commission proceeding, it may mean that you are not a war criminal," says Berenson. "It doesn't mean that you're not an enemy combatant who can be held by our forces until the end of hostilities."

"One defense lawyer said that these are just political trials, show trials," says Bradley.

"No, I think that's grossly unfair to our military. These are not show trials, this is not drumhead justice," says Berenson. "These are going to be full and fair proceedings in the context of war. Different in some important respects from the ordinary criminal trial that we're all used to, but tailored to the exigencies of wartime."

But right now, the courts will decide if the president has the power to tailor justice for the nation's enemies in wartime.

Does Berenson think the courts are telling the president how to wage war? "I think the courts at this point are interfering far too much in the conduct of war, with consequences that could be very, very dangerous for the country," says Berenson.

"The federal courts aren't intruding into the president's power. The president is intruding into the court's power," says Swift. "As a military officer, I don't question the president's ability to fight and win a war. That's not what the president is talking about here. What the president's talking about is handing out criminal sanctions, including the death penalty, to people who are already prisoners. He's not talking about fighting. He's talking about justice. And now what the government is saying is, "don't you dare intrude into the president's powers to hand out justice."

What's at stake with these commissions for both the country and the war on terror?

"What's at stake, ultimately, is this country's ability effectively to wage war against the people who are now our enemies," says Berenson. "If someone were to wave a wand tomorrow and say that every captured al Qaeda terrorist is entitled to be treated as a criminal defendant in our normal civilian justice system, I think it would be a serious blow to our efforts to prosecute and win this war."

"And if that is indeed what happens as a result of what these defense lawyers are doing?" asks Bradley. "I mean, they've stopped this thing in its tracks. What do you do?"

"Then the executive branch is going to have to go back to the drawing board and try to determine what changes they need to make to protect this country without violating what the courts have told us is the law," says Berenson.