Counsel argue over the Constitutionality of 9-11 military tribunals

Oct 19, 2012

Reporting from Guantanamo Bay, Cuba—The trial of the century requires a systematic approach, and the U.S. government has shifted its strategy and must decide if the architects of the 9/11 terror attacks should receive a military tribunal or adopt some federal court parameters. The seemingly endless trial procedure must be adaptable and, as history illustrates, it’s not a one size fits all process.

Commission and Constitution collide

There is no question that the prosecutor charged with proving beyond a reasonable doubt the guilt of the alleged mastermind of 9/11 has been confronted with copious motions before the military tribunal challenging nearly every aspect of the Constitutionality of the proceedings.

While no one disputes that there are differences between military tribunals and federal courts, one thing they have in common is they both dispense “all the judicial guarantees which are recognized as indispensible by civilized peoples” and required by the Geneva Convention. Army Brigadier General Mark Martins, the government’s prosecutor, contends challenges to the technical or formal differences only set-up what he refers to as the six “Uns.” General Martins describes the “Uns” as unfair, unsettled, unknown, unbounded, unnecessary, and un-American criticisms of the Commission process. He also says they are all unfounded.

“The accused have the right to remain silent, and no statements obtained as a result of torture or cruel, inhuman, or degrading treatment are admissible…(any) claims to the contrary are simply wrong …” The imposing six foot four physically fit general officer clarified a common misconception, “the defense has a reasonable opportunity to obtain witnesses and other evidence.”

He compares the process available to criminal defendants in this case to the opportunity presented to a criminal defendant in U.S. court under Article III courts of the Constitution. Martins offers the fact that the “law of armed conflict detention” used at Guantanamo was upheld by the Supreme Court in Hamdi v. Rumsfeld (2004). He also compares the similarity of Khalid Sheikh Mohammad’s military tribunal to that confirmed in United States v. Ghailani, the terrorist tried at Gitmo in 2009 and found guilty for the bombing of U.S. Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The appeals court denied relief and upheld the “Due Process Clause … (as) … the appropriate source of constitutional protection against alleged pretrial abuse.” Therefore the Court found the defendant wasn’t deprived of his constitutional rights.

Moving forward with the KSM tribunal, Martins asserts that the “appropriate remedies such as exclusion of evidence may result in acquittal or dismissal of charges, but no system of justice could be sustained if all opportunities for accountability for criminal conduct were to be sacrificed by society in the event of government misconduct …”

President Obama signed the Military Commissions Act in October of 2009. The newly refurbished act contained a number of changes that Congress inserted in order to blend the federal system and reinvigorate military tribunals at Guantanamo Bay, Cuba.

“The government respects the privilege and role of defense counsel in these proceedings and the fundamental importance of that role in the American system of justice,” Martins commented.

Notwithstanding the General’s assessment, the ACLU, Human Rights’ Watch and members of the media passionately disagree with a homogeneous law. Legal scholars believe there is a third option for the U.S. to provide justice for the terrorists’ responsible for the murders of nearly 3,000 Americans.

“If commissions ended, the USG’s (US government’s) only remaining options would be criminal trial or release. But of course there is a third option: military detention until the cessation of the conflict, said Jack Goldsmith, a Harvard Law School professor. “The last eleven years – and especially the Obama continuation of core Bush GTMO detention policies, and continuing strong congressional and judicial support for those policies – have taught that continued indefinite military detention rather than release is the likely alternative scenario for anyone potentially triable by military commission. We have also learned that for certain classes of al Qaeda detainees (think of Hamdan); conviction by military commissions brings a relatively quick path to release. The bottom line, I think, is that GTMO detainees potentially triable by military commission who cannot actually be tried in a commission will likely remain in detention longer, under a lesser standard of proof, potentially for the rest of their lives.”

Right back where they started from

The Bush administration favored Guantanamo Bay as an ideal location to determine KSM’s fate. In fact, it’s where the alleged terrorist landed after an extended stay at various CIA black sites. “The idea that somehow there is something evil about Guantanamo, I think is a bankrupt idea,” John Ashcroft, former Attorney General said.

Everything changed and nothing changed after the 2008 election of President Barack Obama. He pledged to shake up the Bush administration policies regarding terrorism. He promptly appointed Eric Holder as Attorney General, who sought unsuccessfully to end the Gitmo proceedings in favor of federal court.

Mr. Holder addressed a Congressional committee in November 2009 and promised “Khalid Sheikh Mohammed will have no more of a platform to spew his hateful ideology in federal court than he would have in military commissions.” Apparently he didn’t inform Judge Pohl of what the American people would witness in Wednesday’s courtroom spectacle where KSM was allowed to spew his hateful ideology –uninterrupted. Holder further described his interpretation of the terrorist actions. “The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions. Courts and commissions are both essential tools in our fight against terrorism.”

In November of 2009 on NBC’s Today Show, chief White House reporter Chuck Todd interviewed President Obama from China, and asked Obama to weigh in on the KSM trial that was originally set for a New York City courtroom; “Can you understand why it’s so offensive for some for this terrorist to get all the legal privileges of an American citizen?” Obama’s reply was particularity bold; “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.”

Did President Obama and Mr. Holder guarantee justice, and death?

Holder expressed that he has “full faith and confidence” in the military commission system, but said, “It’s an open question whether someone can plead guilty in a military commission and still receive the death penalty.”

“The ACLU called the administration’s decision (to try KSM at Gitmo) ‘completely wrong’ and a ‘flip flop’ that is ‘devastating for the rule of law and greatly undermines America’s standing abroad,’” according to a CBS News story.

The battle unfolding at the military tribunal seems particularly curious, since KSM confessed to his crimes during a Combatant Status Review Tribunal hearing at Guantanamo Bay in 2007. During the same hearing he asked to become a martyr. Fast-forward five years and KSM is still a captive on the tropical island, and no closer to martyrdom.

Decisions expected

Judge Pohl is expected to rule sometime today on the classification protective order the prosecution requested and is also expected to set forth what is protected and what is not.

Likewise, defense attorneys should receive more guidance on the Constitutionality of the military commissions process that will allow them to lay the foundation for their defense strategy.

Ultimately, the entire U.S. judicial system is on trial. The American experiment created by the framers was built for such a test, the only question remaining is whether the legal, military, and U.S. community are willing to put their full faith in the commission process?

Previous KSM stories:

For more stories:

© Copyright 2012 Kimberly Dvorak All Rights Reserved.

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