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The New York Times

US Acts to Avert Defense tactic expected in Al Qaeda Trial

Scott Shane and David Johnston

WASHINGTON - Bush administration officials said yesterday that they are confident that charges against six suspected members of Al Qaeda would survive expected defense contentions that the cases are based on unreliable statements obtained using controversial interrogation methods.0213 01

The officials confirmed that the Justice Department and the Pentagon, aware of probable legal challenges involving possible mistreatment of prisoners, began an extensive effort in late 2006 to rebuild the cases against the six men using what officials called "clean teams" of agents and military investigators.

By interviewing the prisoners again, and reassembling other evidence against them, the prosecutors could present evidence in court that would be harder for defense lawyers to challenge. But some legal specialists said that approach might not defuse defense arguments that the initial investigations were tainted.

The chief military prosecutor for detainees held at Guantanamo Bay in Cuba, Army Colonel Lawrence J. Morris, declined to discuss the details of how prosecutors would deal with questions about the treatment of captured terrorism suspects. But, Morris added, "we will take very seriously our burden to present trustworthy evidence on which a panel can rely" in reaching a verdict in a case.

Dozens of FBI agents have spent hundreds of hours at the Guantanamo detention center interviewing potential witnesses and suspects. In effect, they re-created intelligence files, thus avoiding information that might be tainted because it was obtained during interrogations using controversial techniques. The legal tactic was described yesterday by The Washington Post.

The CIA confirmed last week that one of the six defendants, Khalid Sheikh Mohammed, considered the chief plotter of the 2001 attacks, was subjected to the technique known as waterboarding, considered by many legal authorities to be torture, while in CIA custody.

In addition to Mohammed, military prosecutors filed charges Monday against Mohamed al-Qahtani, sometimes described as the "20th hijacker," who was denied entry into the United States in August 2001, as well as four men who officials believe played a logistical role in the plot, Ramzi Binalshibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi, and Walid bin Attash. The charges, for which prosecutors are seeking the death penalty, include conspiracy, murder, attacking civilians, terrorism, and providing material support for terrorism.

The clean-team investigators, who had not been briefed on earlier interrogations by the CIA that used controversial tactics, adopted nonconfrontational interview techniques. One government official said some of those charged this week spoke openly about their roles in the Sept. 11 plot.

The investigators applied many of the same standards in Guantanamo that are commonly used in criminal cases in the United States. But unlike suspects in criminal cases, the Guantanamo detainees were not allowed to have a lawyer present during the interviews.

Agents involved in the interviews were chosen for their language and interview skills, law enforcement officials said.

They spent many hours studying their assigned suspects and consulting with behavioral scientists before designing strategies to elicit the information they wanted.

While CIA interrogations of the same suspects, sometimes using harsh physical pressure, were aimed largely at preventing more attacks, a government official said the clean-team interviews were intended to obtain information about past plots in order to build a prosecution.

Kenneth Wainstein, chief of the national security division at the Justice Department, said in a phone interview that federal prosecutors assigned to the Guantanamo cases had been centrally involved in the investigation since 14 alleged senior Qaeda operatives were moved to Guantanamo in September 2006.

Wainstein said the investigators had been advised by "seasoned prosecutors who are very adept at building cases and anticipating the challenges down the road."

But Samuel Issacharoff, a New York University law professor, questioned whether the repeat interrogations could eliminate the taint of previous controversial treatment.

"No amount of redoing the interrogation would clean that up," Issacharoff said.

"There's no such thing as a do-over when you have an abuse of fundamental rights."

Jameel Jaffer, an American Civil Liberties Union lawyer and coauthor of a book on treatment of prisoners, said the law setting up military commissions bans outright any evidence obtained by torture.

The judge decides whether to admit information produced using coercive techniques short of torture, a provision defense lawyers are likely to use aggressively, Jaffer said.

"Every time they try to introduce a piece of evidence, the defense lawyers are going to say, 'This piece of evidence is unreliable' " because of coercion, Jaffer said.

© 2008 The New York Times News Service

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