Binalshibh could face military commission

WASHINGTON, Sept. 17 (UPI) -- A recently captured al Qaida suspect could become the first defendant before a proposed military commission, sources in and out of government said this week. However, they said it might be some time before that decision is made.

Ramzi Binalshibh, believed to be at the heart of the conspiracy that led to last September's terror attacks, was captured in Pakistan last week. He has since been moved to an undisclosed U.S. base overseas for interrogation.

But while Binalshibh was in Pakistani hands, a U.S. Justice Department official said on background the department was making no effort to start extradition proceedings -- a necessary element before trial in the United States in a civilian court.

The official suggested that Binalshibh might be a prime candidate for trial before a military commission but said that decision was ultimately up to President George W. Bush.

A spokesman for the National Security Council subsequently said the White House would have no comment on Binalshibh's status other than the president's public statements.

Bush has characterized Binalshibh as a would-be "20th hijacker" on Sept. 11, 2001: he allegedly tried to join fellow conspirators in the United States from Germany but was refused a U.S. visa three times. However, Bush has made no comment on Binalshibh's ultimate fate.

Attorney Eugene Fidell, president of the National Institute of Military Justice, has dealt extensively with the issue of military commissions and may be the nation's most prominent expert on the issue.

"If press reports about (Binalshibh's) role are accurate, then he would fit the general criteria that the administration has had in mind for trial by military commission," Fidell said Tuesday.

"He is a non-citizen. According to press reports at least, he's suspected of being more than a 'foot soldier,'" Fidell said, "and to the extent that the military commission is said to be more capable of maintaining secrecy than a federal district court, that claim would also seem to apply."

Fidell pointed out that the president has issued an order setting up the regulations for the commissions, but Defense Secretary Donald Rumsfeld has not issued regulations implementing that order.

"I think the original expectation was that there would be no military commissions before the end of this year," Fidell said. "I think that's still true."

Fidell's organization takes no position on the constitutionality of the commissions, and he said he would not take one either. But he said "it's clear there will be challengers" to the system in federal court.

"How far the challenges will get is anybody's guess," he said.

David Davenport, a research fellow with the Hoover Institute at Stanford, also believes military commissions will take some time to set up.

"My general impression is that the whole military commission is moving very, very slowly, in part because they're trying to get all the information they can from these people," Davenport said.

It was not known Wednesday whether Binalshibh or those captured with him were cooperating with U.S. investigators.

The debriefing and an ultimate decision on how to handle Binalshibh is "probably a lengthy process," Davenport said.

He added that though Binalshibh might be the first defendant to be put on the military commission track, the government might actually want to fry smaller fish first.

"My sense would be that I'm not sure I would want to start with such a high-profile individual first," Davenport said. "But an early designation for him to go along that track also seems realistic to me."

Bush first authorized military commissions last November.

Under that order, captured al Qaida members who are not U.S. citizens could be tried under a military system yet to be set up by Rumsfeld, not the civilian courts. Bush's order specifically gives the proposed commissions the power to sentence a defendant to life in prison or to death.

Exposing Binalshibh to the death penalty may cause other countries with evidence vital to the case but opposed to executions, such as Germany, not to turn over evidence to the United States.

Still unknown is whether such a commission would require proof "beyond a reasonable" doubt to convict a defendant. Rumsfeld could choose some lesser standard for convictions.

Also, the commissions could render a guilty verdict with only two-thirds of the military commission voting for it, under the terms of Bush's order. In contrast, the civilian courts require a unanimous verdict for a criminal conviction.

There is also no guarantee that the commissions would have to follow other constitutional requirements, or that commission trials would be held in public.

The commissions could operate overseas or even aboard ship, meaning Binalshibh or any other defendant would not have to be brought to the United States.

The president's order also purports to put defendants appearing before the commissions beyond the reach of U.S. courts.

A commission verdict could only be appealed to the president, or to the defense secretary if the president designates him as a surrogate, again according to Bush's order.

Binalshibh was captured last Wednesday in Pakistan.

An indictment in Germany said Binalshibh shared a Hamburg apartment with Sept. 11 hijacker Mohammed Atta and was part of the terror cell charged with planning and preparing the deadly attacks.

After Sept. 11, Binalshibh fled Germany only hours before police searched his home.

He and about 10 other people were captured in Karachi last Wednesday by Inter-Service Intelligence, Pakistan's feared spy agency, after an intense firefight.

The United States issued a world-wide alert for Binalshibh, 29, after U.S. officials unearthed a videotape of him in an al Qaida leader's house in Afghanistan.

He purportedly delivered a martyrdom message on that tape.