Who, exactly, is holding court in the cases of the five Guantanamo detainees who are accused of terrorist acts that could be punishable by the death penalty?
Khalid Sheikh Mohammed, the alleged 9/11 mastermind, and his four alleged accomplices claimed a certain mocking control over their initial court appearance on Thursday.
Mohammed all but demanded the death penalty. According to the Associated Press, he told the chief judge of the military tribunal, “This is what I wish, to be a martyr for a long time …. I will, God willing, have this, by you.”
So much for the ultimate lesson the government planned to lay on him. If the federal prosecutors truly want to punish him, will they now sentence him to live?
Surreal lecture to the judge
In a surreal turnabout, Mohammed lectured the judge on topics ranging from the U.S. Constitution to same-sex marriage, the Wall Street Journal reported.
“I consider all American constitution” evil, Mohammed told the military judge, because it permits “same-sexual marriage and many other things that are very bad… . Do you understand?”
While Mohammed and the other defendants made a circus of the proceeding, there is nothing funny about the cases. These men are the alleged coordinators of the Sept. 11 terror attacks. They are charged with various crimes related to plotting the killings of 2,973 people that day.
That is all the more reason the government should get the proceedings right. Many Americans worry that that isn’t happening.
It is a sad but salutary thing to recall the precise number of people killed on that day in 2001, Tim Rutten wrote in an opinion piece in Saturday’s Los Angeles Times.
‘Willful overreaching’ criticized
“The consolations of legal justice never can be complete, but they’re all we as a society have to offer the injured and the grieving,” he wrote. “That’s why, when it comes to the handling of these cases, the Bush administration’s willful overreaching, contempt for fundamental American values and defiance of basic American notions of due process have set the stage for travesty and further tragedy.”
In announcing the charges against the men in February, Air Force Brigadier General Thomas Hartmann defended the military commission system that Congress authorized for use against the Guantanamo detainees.
“We have the rule of law. We have a Military Commission Act that’s been determined by the Congress and the president, supported by the Department of Defense,” Hartmann said. “We will follow the rule of law. We will apply the rule of law.”
One criticism, though, is that legal challenges to the procedure haven’t been exhausted. The defining event this month for all of the Guantanamo Bay detainees is a pending U. S. Supreme Court decision on whether the men held at the U.S. prison in Cuba are entitled to challenge their detention in United States civilian courts.
A decision is due any day. But the government’s prosecution team isn’t waiting.
Defendants aware world is watching
Clearly, the five men who were arraigned knew the world was watching. And they cleverly raised issues that are bothering many Americans.
In rejecting the government’s offer of a lawyer, Ali Abdul Aziz Ali said, “Everything that has happened here is unfair and unjust… . The government is talking about lawyers free of charge. The government also tortured me free of charge all these years.”
The five defendants were originally captured in 2002 and 2003 and held in CIA custody or secret lockups overseas until they were transferred to Guantanamo in 2006. CIA officials have acknowledged subjecting Mohammed to waterboarding. All of the men reportedly were subjected to interrogation techniques that many consider to be torture.
When the government decided to keep the prosecutions out of civilian courts, Pentagon defense lawyers told the New York Times that they were worried about many thorny issues in the cases, including:
• 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.
• Exactly what the rules of the trials are to be.
Evidence issues to be decided in court
Hartmann said the issues will be worked out: “The question of what evidence will be admitted, whether [obtained through] waterboarding or otherwise, will be decided in the courts, in front of a judge, after it’s fought out between the defense and the prosecution in these cases. That’s the rule of law, that’s the procedure that Congress has provided to us, and that’s what we will use to finally answer these questions.”
But military defense lawyers say it isn’t clear how that will happen.
“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,” Col. Steven David, the chief military defense lawyer for Guantánamo, told the Times.
While the government said that evidence from torture sessions would not be used, there is a major gray area regarding when torture ends and legal interrogations begin, the Times said. Another clouded issue is “hearsay” evidence, based on intelligence reports gathered from sources who are not likely to appear in court or face cross-examination.
The Nuremberg analogy
Hartmann is one of several Pentagon officials who have compared the Guantanamo procedure to the Nuremberg tribunals that convicted top Nazi war criminals at the end of World War II.
“It’s an extraordinary set of rights that we’re providing to the accused,” Hartmann said.” And just so you know, at Nuremberg there were no rights of appeal.”
But critics say the Nuremberg analogy actually highlights the shortcomings of military justice at the U.S. Naval base, Time Magazine reported.
“Although not without its own flaws, Nuremberg is generally remembered as having been a fair and careful legal process conducted at a time when many were demanding summary execution for leading Nazis. The legality of the proceedings due to begin at Guantanamo, however — against men held in secret CIA prisons where some were tortured before being brought to Cuba — has been loudly challenged by critics around the world,” Time said.
Navy Cpt. Prescott Prince was chief military counsel to Mohammed (who said Thursday he wants nothing to do with an American lawyer). Prince told Time there is no comparison with Nuremberg.
Nazi defendants weren’t tortured
“None of the top Nazi defendants faced torture or waterboarding, or other forms of ‘enhanced interrogation’ — or had to be concerned that information elicited under torture might be used against them in court,” he said.
He also said that many of the lawyers who were prepared to advise the five defendants couldn’t get clearance to see them.
“In a capital murder case involving thousands of victims, it is just unbelievable that many members of the defense team have barely been able to meet with their clients, and some not at all,” Prince said.
In conclusion, Time echoed many other critics: “These legal controversies suggest that the trial of the man accused of planning the worst terror attack ever on U.S. soil may focus as much on the quality of U.S. military justice as on the crime of 9/11.”
Sharon Schmickle writes about foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com.