Washington In select cases, the Bush administration is considering making concessions on both the death penalty and the use of military tribunals to gain custody of suspected terrorists held in Europe, a senior U.S. official said.
It is the first indication that the United States might be willing to negotiate with other countries on how suspected terrorists will be tried.
England, Italy, Germany and Spain all hold suspected members of Osama bin Laden's terrorist organization, al-Qaida. Those nations condemn the death penalty and have signed a 1950s-era treaty that bans extradition to states where the death penalty might be used.
The treaty also contains language that some legal experts believe prohibits military trials.
Spain has already refused to extradite eight suspected terrorists.
"There is an effort to look at what things we might offer that would better provide for the extradition of suspects from Europe," said the U.S. official, speaking on condition of anonymity.
"Each case will be negotiated individually, but it is possible that concessions will be made (on) how the suspects will be tried or punished."
One possibility is putting civilians in key positions on military tribunals, the official said. Another is allowing suspects to select counsel--instead of having an assigned advocate.
The administration also is considering making a promise not to execute suspects who are not directly associated with the Sept. 11 attacks, the official said.
Officially, the White House declined comment and said the rules for tribunals are still being worked out.
The discussion of ways to make extradition more palatable is in recognition of the legal snares and moral problems that European countries face in turning over suspects to the United States.
More than 40 nations have signed the European Convention on Human Rights, which condemns the death penalty. Secret hearings, fewer rights for the accused, and U.S. military officers as judge and jury could also be seen as violations of the treaty, said Guy De Vel, director general of legal affairs at the Council of Europe, which enforces the treaty.
Bush signed an order clearing the way for such a court last month.
International law experts say that without concessions, none of the suspects arrested abroad will be extradited.
"The countries of the European Union have been incredibly consistent in their refusal to turn over suspects that face the death penalty," said Diane Orentlicher, an international law professor at American University.
Using civilians in important roles on a military court probably would not change attitudes, some experts said.
"Even if you turn to a few former U.S. judges or prominent former lawyers, you have an appearance problem," said Mason Digby, a professor of international law at Ohio State. "It will still look as though the United States has rigged the trial to gain a desired outcome."
The United States has brokered deals with European nations before to get around opposition to the death penalty.
In 1998, the Justice Department gained custody of Mamdouh Mahmud Salim, bin Laden's suspected finance chief, by promising Germany he would not be executed. He is on trial in New York on charges of helping plot the bombing of U.S. embassies in Africa.
U.S. authorities also agreed not to execute Jens Soering, a German national accused of killing his girlfriend's parents and then fleeing to London.
As it became clear that some suspects in the terrorist attacks had operated in Europe, Justice Department officials realized that extradition would be a problem.
In addition to objections to the death penalty and the military tribunal, Spain also has a law against extraditing suspects to countries where they might receive more than a 30-year sentence.
Possibly because of Spain's position, the United States has not yet requested the men's extradition.
"The death penalty and maximum sentences are issues which can be overcome by mutual assurances but the law covering special courts appears to be an unsurpassable obstacle in this case," said a Spanish justice ministry spokesman.
The United States will likely seek custody of other suspects abroad.
Mounir El Motassadeq, 27, a Moroccan arrested Wednesday in Germany, is suspected of bankrolling some of the Sept. 11 hijackers.
U.S. authorities have asked Britain to extradite Algerian pilot Lotfi Raissi, accused of training the hijackers. Britain has yet to rule on the request.
But several legal experts said the United States has never asked for the extradition of suspects for trial before a military court.
Indeed, the State Department regularly criticizes nations that use military tribunals.
"The military courts are less independent than the civilian judiciary, as the judges and prosecutors are both part of the State's executive authority," says the State Department's Web site, referring to Egypt's use of military courts in the trial of suspects in a 1989 anti-government riot.