Progress Report: Spanish Inquisition Justice

February 13, 2008

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Ali Frick, and Benjamin Armbruster Contact Us | Tell-a-Friend | Archives | Permalink

TORTURE

Spanish Inquisition Justice

This week, military prosecutors decided to seek the death penalty for six Guantanamo Bay detainees who are "to be charged with central roles" in the 9/11 terror attacks. One detainee, Khalid Sheikh Mohammed, allegedly "conceived the attack, got approval and funding from Osama bin Laden, and oversaw the training of the hijackers." Others aided in the training and financing of the hijackers. While the charges are serious, the detainees deserve fair trials. But under the Military Commissions Act (MCA), such justice appears unlikely. In 2006, a previous system was ruled unconstitutional by the Supreme Court in Hamdan v. Rumsfeld, but months later, President Bush and the conservative-run Congress "resurrected the tribunals in an altered form" in the 2006 MCA. Under this system, four other defendants have been charged by the military commission; only one has pled guilty. In place of military commissions, Ken Gude of the Center for American Progress advocates the use of the criminal justice system, which, "coupled with standard military trials when necessary, has and can further law enforcement, intelligence, and prevention efforts without undermining our fundamental liberties or our long-term efforts to combat terrorism."

TORTUROUS EVIDENCE: The MCA permits the use of evidence obtained through coercion, if a judge finds it "reliable." One of the detainees, Khalid Sheikh Mohammed, has been confirmed to have been waterboarded. Another was subjected to interrogations including "beatings" and "severe sleep deprivation," conditions that raise the question of whether "detainees may be so psychologically damaged that they may not be able to assist in their defense." This week, Attorney General Mike Mukasey refused to rule out the use of such evidence, saying, "What evidence gets presented at this trial is up to the prosecutors" and the "judges who handle the case." While some evidence was gleaned from FBI interrogators who did not use coercive techniques, those interrogators "set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress." Charles Swift, defense attorney in Hamdan v. Rumsfeld, said the last time waterboarding evidence was used in trial was during the Spanish Inquisition. The government's position "is further compromised by the fact that we destroyed the tapes of the interrogations themselves," Swift said.

UNRELIABLE COURT SYSTEM: The military announced this week that "the six defendants will get the same rights as U.S. soldiers tried under the military justice system, including the right to remain silent, call witnesses and know the evidence against them." But the military's procedures still "fall short of all protections provided in civilian courts and under the Uniform Code of Military Justice." For example, the "Guantanamo commission rules allow for more liberal use of...information gathered second- or third-hand." Many questions are unanswered in the new system, "which has yet to begin a single trial." "When you are using an untested system," Georgetown University law professor Neal Katyal said, "every single question is up for grabs and every issue is litigated." According to Swift, the Office of Military Commissions has no attorneys who are "death-penalty-qualified currently assigned." In fact, Col. Steven David, the chief military defense lawyer for the Guantanamo trials, said he did not have six lawyers available to take the cases. They "don't have the resources," Swift said.

ADMINISTRATION SPIN: In the court of public opinion, the military commissions have already failed. Asked whether the trial of Khalid Sheikh Mohammed would respect his legal rights, U.K. Foreign Secretary David Miliband replied, "We have some concerns about that." Even Defense Secretary Robert Gates acknowledged the trials will carry "a taint." But the administration is already dramatizing the trials. A cable sent by the State Department to all U.S. diplomatic missions "advises American diplomats to refer to Nuremberg if asked by foreign governments or media about the legality of capital punishment in the 9/11 cases," referring to the post-World War II International Military Tribunals. The cable notes a distinction between torture and "cruel, inhuman and degrading treatment," saying statements made by defendants under such conditions before the passage of the Detainee Treatment Act of 2005 may be considered. "[T]he administration gambled on this risky Guantanamo scheme six years ago and now with a few months left it is trying to offer one last 'Hail Mary' to that system," Katyal observed.