NEW YORK – At Guantanamo Bay, U.S. defense officials are gearing up for the first military tribunals since World War II and have decided that two accused bodyguards for Usama bin Laden will be among the first to face justice.
Neither man will face the death penalty, even though one allegedly made an Al Qaeda recruiting video celebrating the bombing of the USS Cole (search) and the other was allegedly a senior accountant for the terrorist organization.
One reason for the leniency, experts said, is because the United States wants help from other countries to nab terrorists and gather information about potential future attacks.
"They seem to be toning back a little bit on [capital punishment]," said Richard Dieter, executive director of the Death Penalty Information Center (search), adding that the tribunals initially looked as if they would be "a series of walk-the-plank sort of trials."
"Some countries will not cooperate, if the death penalty is being sought, in a case in terms of evidence," Dieter continued. "Even though the crimes are very severe, there are other problems that make the death penalty more difficult to achieve."
Leon Friedman, a professor at Hofstra Law School (search), agreed.
"The death penalty's very tricky — you need a lot of hard requirements, and I think people are more and more reticent [to apply] the death penalty," Friedman said.
The Bush administration originally wanted tribunals up and running within a year of the Sept. 11, 2001, terrorist attacks, but it switched strategies and instead housed suspects at the naval base in Cuba and other locations in order to interrogate them.
Bin Laden's alleged bodyguards — Ibrahim Ahmed Mahmoud al Qosi (search) of Sudan and Ali Hamza Ahmed Sulayman al Bahlul (search) of Yemen — have been charged with attacking civilians, attacking civilian objects, committing murder by an unprivileged belligerent, committing destruction of property by an unprivileged belligerent and terrorism.
Their tribunals are expected to take place at Guantanamo Bay, though it's not yet known when.
Military tribunals (search) traditionally have been used to try alleged war criminals, for example the Nazi and Japanese leaders after World War II. They are similar to military courts-martial (search), but share some features of ordinary civilian trials.
Suspects are entitled to defense lawyers and to put on a vigorous defense. Rules of evidence are more favorable to the government, however, and the Guantanamo tribunal suspects will have only limited rights to appeal convictions.
Al Qosi and al Bahlul can expect long sentences if convicted, Pentagon sources said.
Just how these modern-day tribunals will work and whether they could set precedents for how future terror suspects would be tried is still under speculation.
"It's a whole different course of criminal justice that has not been used since World War II, and much of our current criminal procedures have evolved since that time," Dieter said.
A High-Court Wrench in Plans?
Another factor in the tribunal process is the U.S. Supreme Court.
The court heard appeals Tuesday about whether terror suspects in secret U.S. custody were being held unlawfully and whether they could protest their captivity.
The cases are centered around the over 600 prisoners, from 44 countries, held at Guantanamo on suspicion of being tied to Al Qaeda or their Taliban hosts in Afghanistan.
The Bush administration maintains that because the men were picked up overseas on suspicion of terrorism and are being held on foreign land, they may be detained indefinitely without charges or trial.
A decision is expected by December. If the court sides with the detainees, it could throw a wrench into the Bush camp's tribunal plans.
"It may be if they say yes ... then everybody's going to go into federal court and say 'Yes, we shouldn't be here,'" Friedman said. "These people in Guantanamo — are they prisoners of war subject to the protections of the Geneva Convention (search), or are they not? And who's to say that they are?
"If they are POWs," Friedman concludes, "then this whole military commission stuff is under serious doubt."
But although al Qosi or al Bahlul won't get the death penalty, other accused terrorists may not be so lucky.
"Military juries are certainly not afraid of handing out Draconian sentences, but who knows what — they don't have a track record for any of this," said Eugene R. Fidell, a lawyer with Feldesman Tucker Leifer Fidell LLP.
Some Americans think the death penalty should be used very carefully, if at all, in the future, both for U.S. citizens and foreigners.
"If they cannot be directly linked to an actual terrorist event, or if they are arrested before a terrorist event, then the death penalty should be off the table," said Jerry Cruz, a PC support specialist in Washington.
"In the case of John Walker Lindh (search) [the young American caught in an Afghan prison and found guilty of fighting with the Taliban] and or the people being held in Cuba, if this is an actual 'war on terror' then they should be treated as prisoners of war," explained Cruz. "If our soldiers get captured, we would demand they be treated as prisoners of war."
Others, on the other hand, want to see the harshest punishment carried out.
"War has taken on an entirely new meaning in the post-September 11 world. We are currently engaged in battle with Al Qaeda operatives, but these enemies cannot be defeated by the means of conventional combat," said Andrew Greenspan, a claims adjuster in New York.
"These people have killed Americans, and the punishment should be no different than if the enemy had been killed in combat."