Military prosecutors have re-filed terrorism and murder charges against Khalid Sheikh Mohammed and four other men. The charges allege that the men were responsible for planning the 9/11 attacks on the World Trade Center. If convicted, all five suspects could face the death penalty. Despite President Obama’s promise to end military trials, the trial will be held as a military commission in Guantanamo Bay.
Attorney General Eric Holder, who was previously working on “a very strong case” for a federal prosecution of KSM, has strongly criticised the decision. In a public statement, Holder upheld the criminal justice system as the appropriate route for terrorist cases. Opponents of a federal trial, he said, “have taken one of the nation’s most tested counter-terrorism tools off the table and tied our hands in a way that could have serious ramifications.”
The row is part of a wider debate over the future of military commissions, which have been widely criticised for their lack of due process and minimal transparency. Begun under the Bush administration, Guantanamo military commissions were judged unlawful by the Supreme Court (Hamdan vs Rumsfeld) before being legitimised through the controversial Military Commissions Act (MCA) in 2006. President Obama, who pledged during his election campaign to end military trials for terrorists, suspended all proceedings in January 2009 through Executive Order 13492, which famously ordered the closure of Guantanamo within one year. Two years later, both pledges have been broken. The MCA has been reformed, but not rejected, and the Obama administration recently lifted the ban on military tribunals. Following this decision, it announced that KSM and the other 9/11 suspects would be among those tried at the naval detention centre.
Proponents of military tribunals argue that they are necessary to protect national security and classified evidence. According to President Obama, ‘they allow for the protection of sensitive sources and methods of intelligence gathering [and] they allow for the safety and security of participants’. Lawyers and human rights advocates have long dismissed these arguments. Like Holder, many legal theorists espouse that criminal proceedings are the appropriate mechanism for trying suspected terrorists, and point to the recent conviction of Ahmed Khalfan Ghailani as evidence that federal cases can operate successfully in terrorism cases. In an important study of post 9/11 counter terrorist activity, the International Commission of Jurists concluded ‘that the criminal justice system does not so much need changing, as it needs strengthening’. They stress that criminal prosecutions are important both for rule of law, and for America’s international reputation, arguing that ‘justice must not only be done, but must be seen to be done’.
According to US human rights lawyer Professor David Glazier, the opposite is happening. The procedure used is so faulty, he argues, ‘that any convictions challenged in federal courts could be reversed’. The real reason for their use, he argues, is to allow the government to sidestep judicial safeguards. Military commissions, he argues, ‘secure convictions that might be unobtainable in courts meeting accepted US domestic and international legal standards, including the use of evidence gained through coercion or even torture’. While the US Military Commissions Act bans the use of evidence obtained through torture, information leaked from the detention centre suggests that this may not always be the case. According to reports, KSM was tortured 183 times during one month of detention at Guantanamo.
As will be discussed in Panel 1 of the conference, Guantanamo Bay operates as a ‘space of exception’ from accepted legal norms and human rights standards. Despite some improvements in procedure, military commissions still fail to satisfy basic procedural requirements. In the run up to the conference, we would be interested in hearing your thoughts on this and other trials against suspected terrorists. Do you think that courts and criminal procedures are adequate for terrorism cases, or should some form of alternative hybrid court be developed? How can national security interests be balanced against moral and legal responsibility? Please post your ideas and comments below.