February 11, 2008
Military Commissions To Get First Major Test
The Pentagon formally announced today it was seeking the death penalty for six Guantanamo detainees for their alleged roles in the Sept. 11, 2001, attacks. The cases, to be tried jointly at the government's request, are the first to hit the U.S. government's as-yet-untested military tribunals system.
The creation of a separate judicial system for foreign terrorism suspects has been slowgoing, fraught with do-overs and heavily criticized around the world. Last June, the first two cases to be brought before the newly established military commissions -- under orders from the Supreme Court and Congress -- were summarily tossed out on technicalities. Now, DOD is signaling its intention of finally putting the military commissions to the test, and with its biggest fish in the war on terror so far.
The highest-profile defendant is Khalid Sheikh Mohammed, who as al-Qaida's No. 3 confessed to planning and facilitating the 9/11 attacks as well as personally beheading American journalist Daniel Pearl in Pakistan.
Though Mohammed's lawyers are sure to challenge his confessions because they were obtained through waterboarding, an interrogation technique widely believed to be illegal, the intelligence community knows enough about Mohammed's affiliation with al-Qaida that he's all but assured conviction.
Same goes for Ramzi Binalshibh, the so-called 20th hijacker. Binalshibh, who lived with lead hijacker Mohammad Atta in Hamburg for a time, was denied a visa to enter the United States -- for reasons having nothing to do with terrorism -- which prevented him from participating in the attacks as planned. His association with al-Qaida is also well-documented, and in 2006, the Washington Post reported on the Yemeni national's difficulties obtaining legal counsel.
Though those prosecutions may be viewed as slam dunks, securing capital punishment may be trickier for the other defendants, who seem to have had a less direct role in carrying out the attacks.
Walid Muhammad Salih Mubarek Bin 'Attash, a Yemeni, is charged with running an al-Qaida training camp in Afghanistan and for providing the network with intel on airport security. Ali Abdul Aziz Ali, of the United Arab Emirates, is accused of sending about $120,000 to the hijackers and helping them enter the United States. Mustafa Ahmed Adam al-Hawsawi, a Saudi Arabian, is also accused of providing financing and aid to the hijackers. Mohamed al-Kahtani was refused entry at Orlando International Airport on Aug. 4, 2001, and is also considered to be the 20th hijacker. Phone records link him to al-Hawsawi, the government alleges.
Though al-Kahtani is not one of the suspects the U.S. admits to having waterboarded, in 2005 Time obtained a log of his interrogations. Among the methods used was "a drill known as Invasion of Space by a Female," in which a female interrogator intentionally sought to make him uncomfortable with her presence. Al-Kahtani's interrogation was the subject of an internal Army probe, and prompted one of the most memorable quotes of former Defense Secretary Donald Rumsfeld's tenure.
"I stand for 8-10 hours a day. Why is standing limited to 4 hours?" Rumsfeld wrote, signing off on a menu of tactics used on al-Kahtani. In a 2006 investigation by NBC, several Army officials said they did not think al-Kahtani could ever be brought to trial because the tactics used to get him to confess were illegal.
Air Force Brig. Gen. Thomas Hartmann, a Pentagon legal adviser, said it will be left up to the judges to decide which evidence may be admitted. "We are a nation of laws and not of men," Hartmann said at a DOD briefing. "The questions about techniques will be decided in the courts in front of a judge. That's the rule of law."
Critics of the Bush administration's detention policies will want a microscope on the tribunal proceedings, but they are not likely to get it. The defendants are considered high-value detainees, and were held in secret foreign locations before being transferred to Gitmo in September 2006. Per the Military Commissions Act, each defendant has:
The right to be represented by detailed military counsel, as well as civilian counsel of his own selection and at no expense to the government; the right to examine all evidence used against him by the prosecution; the right to obtain evidence and to call witnesses on his own behalf including expert witnesses; the right to cross-examine every witness called by the prosecution; the right to be present during the presentation of evidence; the right to have a military commission panel of at least five military members determine his guilt by a 2/3 majority, or in the case of a capital offense, a unanimous decision of a military commission composed of at least 12 members; and the right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court.
But as we saw in the topsy-turvy trial of Zacarias Moussaoui, the first foreign national to be convicted of crimes related to 9/11, the government is highly protective of intelligence in the war on terror, even if it contradicts a defendant's right to examine all evidence against him. It's unclear if the public will be privy to the government's resistance to handing over evidence or witnesses, as these tribunals will be cloaked in near-complete secrecy, unlike Moussaoui's trial which was held in federal court.
See the Washington Post for a list of more detainees being held in Guantanamo Bay. The Supreme Court is taking a look at the criteria for holding detainees; SCOTUSblog has more on DOJ's latest appeal.
Posted at 2:40 PM
Posted to:
Al-Qaida, Bush Administration, Military, Terrorism
Share via
