The contradiction in Bush's fight against terrorism is that only the bit players are being put on trial, writes David G Savage in Washington.
Zacarias Moussaoui, the only person prosecuted over his role in the September 11th attacks, avoided the death penalty because some jurors concluded he had little to do with it.
Yet two key planners of the al-Qaeda plot, Khalid Shaikh Mohammed and Ramzi Binalshibh, have not been charged, though they have been in US custody for more than three years.
A central contradiction in the Bush administration's fight against terrorism is that bit players often have been put on trial, while those thought to have orchestrated the plots have been held in secret for questioning.
The difference in treatment, government officials say, is because gathering intelligence from suspected terrorists is more important than publicly punishing them.
That's why Muslim men from Oregon, New York, and California, have been prosecuted and imprisoned for having attended training camps in Afghanistan. Facing charges such as conspiracy and providing "material support" to terrorists, they had little to reveal to US intelligence authorities.
Similarly, the Bush administration sought life in prison for John Walker Lindh, the California-born Muslim convert who went to Afghanistan to fight for the Taliban regime before the US invasion. He pleaded guilty in exchange for a 20-year sentence.
But it was a different matter when the FBI arrested José Padilla in Chicago in 2002. The Brooklyn native, a convert to Islam, was suspected of leading a plot to set off a radioactive "dirty bomb" inside the US.
Rather than file terrorism charges against him, the government branded him an "enemy combatant" and confined him to a military cell for three years. He was not allowed to speak to his family or to a lawyer while he was interrogated about the supposed plot.
Government lawyers said they were reluctant to charge Padilla with a crime, since that would entitle him to a lawyer. And a lawyer undoubtedly would tell Padilla not to talk to government investigators.
Late last year - after Padilla had legal representation and as the Supreme Court was deciding whether to hear his challenge to President Bush's power to detain Americans with the nation at war - the administration changed course. Padilla was charged with several minor terrorism-related crimes, but not with plotting to set off a dirty bomb.
While the Moussaoui jury seemed to indicate on Wednesday that he had not been directly responsible for the September 11th attacks, Mohammed has told investigators about the plot in great detail. Ten years ago he conceived of the idea of using hijacked commercial aircraft as missile-like weapons, and eventually convinced al-Qaeda leader Osama bin Laden to fund the plot.
Originally, Mohammed wanted to hijack 10 planes and fly them into five targets on the west coast and five on the east coast. Bin Laden thought this was too complicated, and they agreed to concentrate the attacks on the east coast. With that settled, Mohammed was put in charge of the plot against New York and Washington.
He chose Binalshibh to co-ordinate the operations of the 19 hijackers and to serve as their paymaster. Both men were captured in Pakistan - Binalshibh four years ago and Mohammed a year later - and are being held in secret prisons outside the US.
In a 56-page statement submitted as evidence at Moussaoui's trial, Mohammed stressed that the avowed terrorist was seen by leaders of September 11th as unreliable. Moussaoui was to train in the US and be ready for a possible "second wave" of attacks, Mohammed said.
Moussaoui "did not know [ Mohammed] Atta," leader of the hijackers, "and there was never any contact between them", Mohammed said.
That did not prevent the administration from prosecuting Moussaoui, who had been arrested in Minnesota and jailed on a visa violation three weeks before September 11th, 2001. He pleaded guilty to being a part of the conspiracy, and the jury on Wednesday sentenced him to life in prison without parole.
Administration officials said recently that it was still possible the September 11th planners would be prosecuted.
"With every case, the government has to make a calculation. There are pros and cons. It involves weighing how much information would be released in court," said an official who insisted on anonymity because he was not authorised to discuss the process.
If the Supreme Court upholds the military tribunals for terrorist suspects being held at Guantánamo Bay, Cuba, administration officials could try high-ranking al-Qaeda leaders there. Current and former intelligence officials have said, however, that the CIA has used aggressive interrogation techniques on captured al-Qaeda leaders. As a result, many legal experts say it may be too late to try Mohammed and Binalshibh in a regular court of law.
"They cannot be prosecuted because of the way they have been interrogated," said University of Maryland law professor Michael Greenberger, a terrorism expert. "They have been subjected to very aggressive questioning, and any statements they made now can't be used against them.
"That has been the irony of the Moussaoui case from the beginning. We have prosecuted a marginal character who appeared unmoored from reality, while the real planners of the crime will not be brought before justice in the US," he added.
- (LA Times-Washington Post Service)