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 at Guantánamo.
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 system.
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."
