Friday, February 15, 2008


By William Fisher

As the U.S. moves toward the death-sentence trials of six suspected terrorists at Guantanamo Bay, Cuba, legal scholars and human rights advocates are raising questions not only about the process that led to the prosecutions but also about the Bush Administration’s motives in bringing the charges now and the credibility of the trials themselves.

The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together. If convicted, they would likely be executed at Guantanamo.

Before being shipped to Guantanamo, five of the defendants were held without charges or legal representation by the U.S. Central Intelligence Agency in secret prisons in Eastern Europe and elsewhere and reportedly subjected to torture.

The Bush Administration has acknowledged that at least one of the defendants, Mr. Mohammed, the reported “mastermind” of the September 11, 2001 attack on the World Trade Center and Pentagon, was subjected to “waterboarding” while in custody.

Waterboarding, a technique that simulates drowning, has been acknowledged as torture for hundreds of years. During World War Two, U.S. authorities prosecuted Japanese soldiers for using the practice against American prisoners of war. The newly-appointed U.S. Attorney General, Michael Mukasey, has declined to say whether waterboarding is torture.

Vice President Dick Cheney has vigorously defended the use of waterboarding and other harsh interrogation techniques, referring to them as “a tougher program for a very few tougher customers.”

Of the six men charged, Mr. Mohammed and four others were held for as long as three years in the secret C.I.A. prisons that were part of what the agency calls its “high-value terrorist interrogation program.” The prisons were established in 2002, but the administration did not publicly reveal their existence until 2006, when Mr. Mohammed and other detainees were moved from the C.I.A. facilities to the military prison in Guantánamo Bay, Cuba.

Military authorities have declared that no evidence obtained through torture will be used at the trials.

But many legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can convict the six without using evidence obtained through torture.

Horton also told IPS he believes the process used to establish the Military Commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.

Horton is one of a large group of lawyers and legal scholars who are questioning the government’s motives and well as its timing in deciding to move ahead with the trials.

He added, “After being held for six years, there is a suspicion that the timing of trials is being ‘politically manipulated’ to coincide with the 2008 presidential election. He said he feared the result will be a case “bordering on a show trial."

This viewed is 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 Guantanamo for six years and claims to have been tortured during that time.

Ratner told IPS that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury only a group of military officers and the judge is 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. For example, the head prosecutor at Guantánamo, Colonel Morris Davis, resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.

And lifelong Republican John Hutson, a retired Judge Advocate General, has expressed increasing frustration with the Bush administration's treatment of detainees at Guantanamo Bay. Hutson has become a leading voice among former military officials opposing Bush policies on Guantanamo Bay and torture, worried about the precedent it would set for future conflicts.

But the Bush Administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top

A spokesman for the Pentagon, Air Force Brig. Gen. Thomas W. Hartmann, a Defense Department legal adviser, said the trials will be "as open as possible,", and the accused will 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 said. He added that the defendants will be tried by a 12-member military commission, which must reach a unanimous verdict. A decision to impose a capital sentence also must be unanimous, he said.

But Hartmann declined to answer questions about the admissibility of evidence
obtained by waterboarding, which the CIA has acknowledged using to extract information from one of those now being charged.

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 beginning prosecutions.

The legal saga began in 2001, when President Bush issued an executive order establishing military commissions to try those captured in the “War on Terror.” But in 2004, a federal judge ruled that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a commission established by an executive order. Only an act of congress, the court suggested, could be legal.

So in December 2005, a Republican-controlled congress passed the Detainee Treatment Act of 2005 (DTA). It stripped U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees challenging the reason for their detention and vested exclusive review of final decisions of military commissions in a single circuit court.

A year later, an appeals court overturned the Hamdan decision. And a year after that, the Supreme Court reversed the appeals court decision. The High 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 President Bush signed into law in early 2006. That law, which is still under challenge in the courts, became the basis of the current prosecutions.

The forthcoming trials have also generated considerable interest abroad. For example, the influential British newspaper, The Independent, wrote last month, “The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.”

Concern about the credibility of the U.S. has also been voiced by many American legal scholars.

David Cole, one of America’s preeminent constitutional authorities, told IPS, “For better or worse, the U.S. is a world leader on matters of human rights. When the US 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 viewed was echoed by he CCR’s Ratner, who told IPS, “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 alleged 9/11 conspirators.”

And This view was echoed by Ratner, who said: "These trials are important because the U.S., a country that often criticises 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 Sep. 11 conspirators.

“These trials, if they ever do occur, cannot deliver justice. The use of secret evidence, hearsay evidence (where the accused does not have the opportunity to cross-examine the witness against him), and evidence possibly gained through torture and other cruel and inhuman interrogation techniques assures that the trials will not be fair,” he told us.

Gabor Rona, International Legal Director for legal advocacy group Human Rights First, concurs. He told us, “This process was designed not to do justice, but to assure convictions. If it is justice that is sought, then there is little reason for inventing a new system of trials where everything is uncertain and the rules are made up as the cases proceed. If it is justice that is sought, there is little logic in casting aside the legal architecture that has served the US well for over 200 years. Both before and since 9/11, America's normal criminal justice system has handled dozens of often difficult cases involving allegations of international terrorism, using established rules consistent with international principles of fair trial.”

He added, “These trials will be a stain on America's reputation for fairness. These trials will harm US relations with the rest of the world, will give ammunition to those who promote international terrorism, and will setback the cause of human rights values around the world.”