Military prosecutors filed capital charges against a former senior leader of al-Qaida and five other Guantanamo detainees on Monday for their roles in the Sept. 11 terror attacks, but the possible obstacles facing a death penalty case in the Bush administration's military commission system were immediately apparent.
Col. Steven David, the chief military defense lawyer for the Guantanamo cases, who must provide detainees with military lawyers, said he did not have six lawyers available to take the cases, which the Pentagon described as a milestone in the war on terror.
In addition, he noted, many questions are unanswered in the military commission system, which has yet to begin a single trial.
They include whether waterboarding constitutes torture, how statements obtained by coercion are to be handled, whether detainees may be so psychologically damaged that they may not be able to assist in their defense and exactly what the rules of the trials are to be.
All of which, David said, means there are no answers to what happens next in the most important case in the Guantanamo system, and how long it will take.
"You're asking me to tell you how we're going to get to a place we've never been, with a map I don't have," David said.
A senior Pentagon official in the Office of Military Commissions, Brig. Gen. Thomas Hartmann, described the charges Monday in sweeping terms. He portrayed the Guantanamo system as a painstaking one that will, in the American tradition, sort out conflicting viewpoints in the courtroom.
"We will follow the rule of law," Hartmann said.
But some lawyers asked: Precisely what law applies?
Neal Katyal, a Georgetown University law professor who represents a Guantanamo detainee, said the Bush administration's decision to use a military commission system, rather than civilian courts, meant that standard procedures do not apply. That is a prescription for uncertainty, he said.
"When you are using an untested system, every single question is up for grabs, and every issue is litigated," Katyal said.
It is not clear whether the government will apply civilian rules holding that death penalty cases are to be treated with extraordinary care, or how a death penalty might be carried out, or where. It is not even clear how much of the proceedings may take place in sealed courtrooms.
Guantanamo cases are conducted under a 2006 law that assures detainees in war crimes trials the right to a lawyer, the right to have charges proved beyond a reasonable doubt and the right to appeal.
Each of the six defendants has a complex story that lawyers will need to unravel. Pretrial procedures will take several months at least. Several Guantanamo lawyers said the task facing any lawyer who took the cases would be so uncertain that no trial could begin for many months, or years.