Q+A: What happens next in U.S. terrorism trials?

WASHINGTON Thu Nov 18, 2010 1:20pm EST

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WASHINGTON (Reuters) - The Obama administration's bid to prosecute detainees held at the Guantanamo Bay military prison in U.S. criminal courts was severely complicated by a trial in New York of a Tanzanian man once held there.

Here are some answers to questions about what happens to other terrorism trials and why the New York case was key.

Q: What happened to the first detainee prosecuted in a criminal court and why is this case important?

A: Ahmed Khalfan Ghailani, 36, was convicted on only one of more than 280 counts for his role in the 1998 bombings of the U.S. embassies in Kenya and Tanzania that killed 224 people. He had been charged with murder, attempted murder and conspiracy charges but was only found guilty of conspiring to damage or destroy U.S. property with explosives. The case was the first trial in a federal court of a detainee held at the U.S. military prison at Guantanamo Bay, Cuba, and was seen as a test of the American legal system for prosecuting terrorism suspects.

Q: What options does the Obama administration have for the detainees held at Guantanamo prison in Cuba?

A: President Barack Obama and Attorney General Eric Holder have said they intend to try terrorism suspects in both traditional criminal courts and military commissions. But they have faced opposition to criminal trials from congressional Republicans as well as some of Obama's fellow Democrats. Many are opposed to giving the suspects full U.S. legal rights and worry about security at the courthouses, which could become targets for attacks.

The administration has said that if terrorism suspects could not be prosecuted and were considered too dangerous to transfer overseas, they could be detained indefinitely by the United States under the authorization of use of military force Congress approved after the September 11, 2001, attacks.

Q: Why is there opposition to holding the trials in traditional criminal courts?

A: There are several arguments. One is whether terrorism suspects, none of whom are U.S. citizens, are entitled to all the legal rights afforded criminals in the American legal system, such as the right to remain silent and the right to avoid self-incrimination. The argument is that the suspects are enemy combatants, many of whom were captured on the field of battle and should be tried by the military.

In light of the Ghailani verdict, many question whether a jury made up of ordinary people can be trusted to determine the guilt or innocence of terrorism suspects.

The Obama administration has argued that scores of terrorism suspects have been convicted in criminal courts without difficulty and that prosecuting them in traditional courts would show the world that the U.S. legal system is fair regardless of the crime or defendant.

Q: Then what about military trials?

A: Republicans and some Democrats have said they prefer military commissions because there suspects would not be afforded full U.S. legal rights. Commissions also can deal with enemy combatants, they say, and military jurors are better equipped to weigh the evidence against the suspects.

However, the detainees are still afforded many key rights, including the right against self-incrimination and new rules that bar coerced testimony and limit the use of hearsay evidence. Further, the trials have been used only in a handful of instances -- not enough to be certain of the potential outcomes, Obama administration officials have said.

Q: What will happen with the five men at Guantanamo accused of plotting the September 11, 2001, attacks, including Khalid Sheikh Mohammed, their self-professed mastermind?

A: Holder announced a year ago that he planned to prosecute Mohammed and his four co-conspirators in a federal court in New York, just a few blocks from the World Trade Center site. That was derailed after New York officials, Republicans and some Democrats raised concerns about security and said the men should be tried in military courts because they are enemy combatants who had conspired to attack the United States.

Holder has said he expects a decision relatively soon but has offered no further details.

Q: What happens to the trials now?

A: So far, Congress has severely limited the ability of the Obama administration to move detainees out of the Guantanamo prison by restricting funding for the Justice Department. Only after informing Congress 45 days in advance, can detainees be moved to U.S. soil for prosecution. With Republicans poised to take control of the House of Representatives, such restrictions are expected to continue and may increase.

Also, the verdict in the Ghailani trial will likely complicate plans to bring further cases to criminal courts.

Q: What happens to the prison at Guantanamo Bay?

A: There are some 174 detainees still at the U.S. military prison. More than 40 have been referred for possible prosecution in a federal or military court. Obama pledged to close the controversial facility, under fire for being a facility where terrorism suspects were subjected to harsh interrogations. Obama missed his original January 2009 deadline and no new date has been set. Few expect him to live up to the closure pledge during his first term. Many of the detainees are expected to be transferred to their home countries but because most of them are from Yemen, a hotbed of al Qaeda activity, the administration has suspended transfers there.

(Editing by Bill Trott)

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