Guantánamo, on Trial - "New York Times" Editorial

Courtesy: The "New York Times:, 16 April 2011

Guantánamo, on Trial - Editorial

In bringing justice to those accused of plotting the Sept. 11 attacks, it will never be possible to have military trials at Guantánamo that Americans can be fully proud of, or that the world will see as credible.

Still, it seems certain those trials will be held. In a triumph of raw politics over the nation’s security interests, the Obama administration was forced to abandon its effort to try Khalid Shaikh Mohammed and four others in federal court, where these cases belong.
It announced that they will be tried before a military tribunal at the Guantánamo prison, which President George W. Bush made a symbol of torture and illegal detention.
Attorney General Eric Holder ineptly failed to line up local political support before announcing that the prisoners would be tried in Manhattan. But that did not excuse the hyperventilating and unyielding opposition of Mayor Michael Bloomberg, Senator Charles Schumer, Representative Peter King and other pols.
Nor did it begin to justify the law that denied money to move any Guantánamo prisoner to the United States. It was a shocking example of politicians dictating a prosecutorial decision. The result: huge gaps of competency and credibility. Federal courts have a long record of successfully handling complex terrorism cases. These most important of 9/11 trials will take place in a system of questioned legitimacy, operating under untested rules, with no experience in concluding major terrorism trials.
Still, there are things that should be done to avoid an utter legal shambles and administer some justice.
NO TAINTED EVIDENCE Mr. Holder has said repeatedly that there is enough evidence to convict Mr. Mohammed, the self-professed mastermind of the 9/11 attacks, and the others without relying on evidence tainted by torture or coercion or on hearsay evidence likewise inadmissible in federal court. Mr. Mohammed was subject to waterboard torture 183 times — after, his interrogators have said, he gave up all the useful information he had.
Military prosecutors should stick to those parameters, and not try to exploit the somewhat more lenient evidentiary rules in military commissions, or urge a fanciful redefinition of torture to preserve a defendant’s confession or other evidence. That has happened before.
ADEQUATE DEFENSE Experienced military and civilian defense counsel must be made available in adequate number and given sufficient resources and leeway. Last month, the retired vice admiral who serves as the “convening authority” for military commissions, Bruce MacDonald, issued new rules for defense lawyers without first inviting public comment or consulting the military’s chief defense lawyer, Col. Jeffrey Colwell of the Marines.
The rules were put on hold after Colonel Colwell objected that they were “unworkable” and would “unreasonably and unlawfully” interfere with the lawyer-client relationship. One would have required defense lawyers to say what language they would be speaking with their clients and to use the same language during client visits “to the maximum extent possible.” This, Colonel Colwell noted, is an “absurd” rule, unless the government is improperly monitoring the conversations, contrary to its claims.
TRANSPARENCY This is crucial at every level. Beyond allowing 9/11 survivors and families to view the proceedings via a closed-circuit hookup, the Pentagon should arrange for televising the trial worldwide. Federal courts, wrongly, do not permit televising of criminal trials. But military tribunals do not enjoy the same level of public trust, making it even more important to let the public observe them.
In any case, interest in covering the trial is bound to exceed the few dozen journalists that Guantánamo can accommodate. If arguments for televising the trial fail, alternate arrangements must be made so those seeking to cover the trial can conveniently do so.

LESS SECRECY More broadly, the Pentagon needs to change its mind-set regarding both treatment of the press and secrecy. In a troubling episode of censorship last year, the Pentagon banned four reporters covering a hearing for a former child soldier accused of killing an American soldier in Afghanistan. The reason was galling: They published the name of a witness who had already been identified in news reports and public documents.

In response to protests, the rules were revised and the reporters reinstated, but other problems have continued to fester, including lack of timely access to trial filings and transcripts, and overclassification of evidence on flimsy national security grounds, which avoids disclosure and results in needless blanks in the official record.
A decade after 9/11, eight years after Mr. Mohammed’s capture, it is implausible that much evidence still exists that warrants withholding on real national security grounds. Previous secrecy designations need to be regularly re-examined in light of the passage of time.
No doubt the trial will raise a host of thorny issues, including expected questions regarding some defendants’ competency to stand trial or to represent themselves, and whether a military commission may accept a guilty plea without a trial in a death penalty case.
The language of existing military commission rules seem to foreclose that last possibility, but Attorney General Holder says it is “an open question.” Legislation has been introduced in Congress that would clarify the rules to allow a guilty plea to short-circuit a capital trial. That is exactly the wrong move, and in any case, it is too late in the day to be changing the rules.
There is great virtue in a public legal proceeding that lays out 9/11 in detail and serves as a reminder of its horror. It deserves precedence over any desire by the Pentagon to avoid a trial that might reveal embarrassing information about torture, or serve Khalid Shaik Mohammed’s stated desire to accelerate his delusional martyrdom.

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Note: The viewpoint expressed in this article is solely that of the paper / writer. "FATA Awareness Initiative" Team may not agree with the opinion presented.

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