As the U.S. moves toward holding death-sentence
trials for six Guantánamo Bay detainees alleged to have plotted the Sept.
11 attacks, legal scholars and human rights advocates are questioning not only
the six-year-long process and timing of the charges, but also whether the accused
could ever receive fair trials.
On Feb. 11, charges were issued against the six, including the alleged chief
organizer of the Sept. 11 attacks, Khalid Sheikh Mohammed. The U.S. military
outlined 168 charges, including conspiracy, murder, attacking civilians, terrorism,
and supporting terrorism.
All six accused will be tried together by military commissions highly-controversial
criminal courts run by the U.S. armed forces at the U.S. naval base at
Guantánamo Bay, Cuba. They will be the first trials of detainees held
One former detainee, David Hicks from Australia, pleaded guilty in March 2007
to providing support to a terrorist organization. He was sentenced to seven
years in jail to be served in his home country. Given time off for his five
years in captivity, he was released in December 2007.
Since the beginning of the war in Afghanistan in 2002, more than 800 detainees
have been imprisoned in Guantánamo. Hundreds have been released without
charges. But about 275 are still held, 80 of whom the U.S. has said it expects
to put on trial.
Before being taken to Guantánamo, five of the accused were held without
charges or legal representation by the U.S. Central Intelligence Agency (CIA)
in secret prisons in Eastern Europe and elsewhere. The George W. Bush administration
has acknowledged that at least one of the defendants, Mohammed, was subjected
to waterboarding while in custody.
Waterboarding simulated drowning has been long acknowledged as
torture. The newly appointed U.S. attorney general, Michael Mukasey, has recently
declined to say whether he agreed. But after World War II, the U.S. prosecuted
Japanese soldiers for using the practice against its prisoners of war.
Vice President Dick Cheney has vigorously defended waterboarding and other
harsh interrogation techniques, referring to them as "a tougher program
for a very few tougher customers."
Military authorities have declared that no evidence obtained through torture
would be used in the upcoming trials. But many legal experts, including Columbia
University law professor Scott Horton, have expressed skepticism about whether
convictions can be obtained without using the evidence extracted under torture.
Horton told IPS that the timing of the trials was "politically motivated"
to strengthen the Republican Party's chances in the 2008 presidential election.
Trying the accused by military commissions was likely to result in "a series
of show trials," he added.
This view was shared by Michael Ratner, president of the Center for Constitutional
Rights (CCR), a New York-based legal advocacy group, which represents one of
the defendants, Mohammad al-Qahtani, who has been held at Guantánamo
for six years and claims to have been tortured during that time.
The military commission system had "none of the guarantees" of trials
by normal civilian courts, Ratner told IPS.
He added: "Coerced and hearsay evidence can be used. There is no jury,
only a group of military officers and a judge appointed by the Bush administration.
Much of the trial can be held in secret and the defendant does not get to see
all of the evidence. After this sham process, the defendant, if convicted, can
receive the death penalty. There is a barbarity to the actions of the Bush administration
that is without precedent."
Many military lawyers have expressed similar views.
The former head prosecutor at Guantánamo, Col. Morris Davis, resigned
when he was placed directly under the command of the General Counsel of the
Department of Defense a principal architect of the military commissions
Lifelong Republican John Hutson, a retired judge advocate general the
military's top lawyer has become a leading voice among former military
officials criticizing the Bush administration's policies on Guantánamo
Bay. Hutson has opposed torture and the precedent it would set for future conflicts.
The Bush administration has argued that ordinary courts are not equipped to
handle the sensitive national security considerations involved in trying terrorists.
A Pentagon legal adviser and spokesman, Air Force Brig. Gen. Thomas W. Hartmann,
has said the trials would be "as open as possible." The accused would
have the right to call their own witnesses, cross-examine prosecution witnesses,
and see the evidence presented against them.
"There will be no secret trials," he has declared. The 12-member
military commission would have to pass unanimous verdicts.
But Hartmann has declined to answer questions about the admissibility of evidence
obtained by waterboarding.
The procedures of the military commissions have been repeatedly challenged
in U.S. civilian courts, resulting in a number of stinging defeats for the Bush
administration and contributing to the delays in holding the trails.
This legal saga began in 2001, when President Bush issued an executive order
establishing military commissions to try those captured in the so-called "War
on Terror." Four years of legal battling later, the U.S. Supreme Court
ruled that military commissions as defined under the president's executive
order violated military law and the Geneva Conventions.
Congress then hurriedly enacted the Military Commissions Act of 2005, which
Bush signed into law in early 2006. That law, which is still under challenge
in the courts, has become the basis for the planned trials. If challenges to
the military commissions are successful, the trials could be delayed even further.
Concern over the potential loss of U.S. standing in the world over the holding
of military trials and what will emerge during them has been voiced by
many American legal scholars.
David Cole, a leading constitutional authority, told IPS: "When the U.S.
violates human rights in the fight against terrorism, it sends a message to
autocrats and dictators worldwide that they, too, can deny human rights in the
name of counterterrorism."
This view was echoed by Ratner, who said: "These trials are important
because the U.S., a country that often criticizes torture and military tribunals
in other countries such as Nigeria and Turkey is now using torture
and trials outside its normal system to try the alleged Sept. 11 conspirators."
Rona Gabor, international legal director for the advocacy group Human Rights
First, told IPS: "Much of the world considers the death penalty an international
human rights violation even when imposed after the fairest of procedures. To
impose it through an untested, ad hoc process that has not yet successfully
completed a trial, even for a misdemeanor, will likely be viewed with deep skepticism."
(Inter Press Service)