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The Logic of the 9/11 Trials, The Madness of the Military Commissions

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Andy Worthington
Campaign For Liberty
Friday, Nov 20th, 2009

With just over two months to go until President Obama’s deadline for the closure of Guantanamo, the administration has finally woken up to the necessity of actually doing something to facilitate the prison’s closure by announcing on Friday that Khalid Sheikh Mohammed and four other prisoners accused of involvement in the terrorist attacks of September 11, 2001, will be brought to New York to face federal court trials.

Despite the fact that the “war on terror” was launched over eight years ago to pursue those responsible for the 9/11 attacks, and despite the fact that Attorney General Eric Holder noted, in a statement announcing the trial, that the opportunity for the relatives of the 9/11 victims “to see the alleged plotters of those attacks held accountable in court” had been “too long delayed,” Republican critics immediately leapt on the announcement, with Senate Minority Leader Mitch McConnell describing it as “a step backwards for the security of our country” that “puts Americans unnecessarily at risk.”

McConnell, former Vice President Dick Cheney, and others who have spent most of the year shamelessly playing the fear card about bringing Guantanamo prisoners to the US mainland to face trials ought to be ashamed of themselves, as there is no reason to delay justice any longer in the case of these men, and every reason to decry the fact that, instead of being prosecuted shortly after their capture, they were diverted into a lawless program of incommunicado detention and torture that threatened to derail the possibility that they could be brought to justice at all.

In the case of Khalid Sheikh Mohammed, for example, the decision to prosecute him in a federal court comes over six years late. Despite having confessed to his involvement in the 9/11 attacks  to an al-Jazeera reporter before his capture by US forces in March 2003, he was held for three and a half years in secret prisons run by the CIA, where he was subjected to torture (including waterboarding, a form of controlled drowning), in a violent and misguided attempt to secure “actionable intelligence.” Instead of achieving its desired result, this vile program appears to have prevented no actual planned terrorist attack, and led only to the generation of countless false leads, which wasted the resources of the intelligence services, and also, of course, led to the creation of a global network of secret prisons in which, distressingly, torture only begat more torture.

Khalid Sheikh Mohammed is the most notorious of the five men, but the others – Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash – were also tortured in secret CIA prisons for up to four years, and, as with KSM, the decision to try them in federal courts is most noteworthy for finally bringing to an end the scandalous flight from justice and the law that led to their secret detention and torture.

The Problems With the Military Commissions

However dismal and compromised this story is, it at least has more to recommend it than the simultaneous announcement that five other prisoners will not face federal court trials, but will, instead, face trials by military commission. This alternative judicial system – for “terror suspects” only – was set up by former Vice President Dick Cheney in in November 2001, and struggled to establish anything resembling legitimacy throughout its seven-year existence, securing only three dubious verdicts, and attracting ferocious opposition from its own government-appointed military defense attorneys and also from a number of prosecutors who resigned, including Lt. Col. Darrel Vandeveld and the former chief prosecutor, Col. Morris Davis, who all recognized that it was rigged to disguise the use of torture and to secure convictions.

  • A d v e r t i s e m e n t

Amended by the Obama administration and by Congress, the commissions still lack legitimacy, with gray areas involving the admissibility of coerced confessions and hearsay evidence, and a widespread conviction amongst legal experts that federal courts have a proven track record in dealing with terrorism cases that the commissions can never hope to emulate.

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This article was posted: Friday, November 20, 2009 at 4:54 am

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