CE Week #3: “Sept. 11 charges face hurdles “
Waterboarding, tribunals test prosecution
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Aamer Madhani and James Oliphant
Chicago Tribune
February 12, 2008
WASHINGTON – The plan announced by the Pentagon Monday to seek the death penalty against six suspects accused of planning and organizing the Sept. 11 attacks could be complicated by the recent acknowledgment that one of the accused was the subject of waterboarding, as well as the legal and international communities’ antipathy toward the Bush administration’s military tribunals.
The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together.
Monday’s announcement takes the Pentagon, and the country, into largely uncharted legal territory. The procedures of the military commissions have been repeatedly challenged in court, with some success, and legal precedents that have been developed by courts over decades or longer hold less sway than in the civilian criminal justice system.
But the administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top terrorists.
“These charges allege a long-term, highly sophisticated, organized plan by al-Qaida to attack the United States of America,” Brig. Gen. Thomas Hartmann, the legal adviser to the tribunal system, told a Pentagon news conference Monday.
Besides Mohammed, the other men facing charges for the Sept. 11 plot are Walid Muhammad bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed al-Hawsawi and Mohammed al-Qahtani. Mohammed, bin Attash, Binalshibh, and Ali are also charged with “hijacking or hazarding a vessel” in connection with the four commercial airplanes that were crashed into the World Trade Center, the Pentagon and rural Pennsylvania.
As the commissions’ procedures dictate, Judge Susan Crawford, the convening authority over the military tribunals, still needs to certify the charges against all six of the suspects as capital offenses to make them eligible for the death penalty if convicted.
Since its opening, the Guantanamo prison has been criticized by human rights activists and some foreign leaders as a secretive facility operating outside U.S. law. The military commissions have also been criticized by many in the legal community, and federal courts have repeatedly questioned the Bush administration’s overall system for handling enemy combatants in the war on terror.
In 2006, the Supreme Court decision struck down the first version of the military tribunal, or commission, system as unconstitutional. Since then, only four defendants had been formally charged by the military commission.
Despite the notoriety of the new defendants, nothing is likely to come easily – or quickly. Hartmann said it could be months before the defendants even make an appearance before a commission, the first step toward an ultimate trial.
The prospect of capital punishment is likely to throw the already muddy process into further uncertainty, since courts demand a higher degree of due process when the death penalty is involved. And lawyers for each of the detainees will undoubtedly file motions to sever their clients’ case from the other five.
Another potential wrinkle: The Supreme Court is considering a case that concerns whether detainees have the right to challenge their detention in federal court outside the commission process. If it sides with the detainees, that litigation would proceed on a wholly separate, and elongated, track.
Kevin Lanigan, the director for the Human Rights First law and security program, said the prosecution of Khalid Sheikh Mohammed and the other suspects was long overdue, but the allegations of torture will complicate a military system that has been problematic from the start.
“The administration still refuses to acknowledge its two greatest self-imposed obstacles to achieving justice for the families and victims of 9-11: the absence of a credible and truly independent system for trying these defendants, and problems caused by the use of official cruelty in interrogating them,” Lanigan said.
Last week, CIA Director Michael Hayden confirmed that Khalid Sheikh Mohammed, the purported mastermind of the attacks, was one of three terror suspects in CIA custody who had been subjected to the interrogation technique known as waterboarding.
Waterboarding makes a prisoner believe he is in imminent danger of drowning. The suspect is tied to a board and water is poured through a cloth that covers his face. The practice is prohibited by the Geneva Conventions and the U.S. Army Field Manual, and most of the international community considers the technique torture.
In addition, al-Qahtani, who Pentagon officials say was supposed to have been the 20th hijacker, has alleged he was tortured and last fall recanted a confession he said he made after he was abused by interrogators.
Jim Cohen, a professor at Fordham Law School who represents two Guantanamo Bay detainees who are not among the six charged Monday, said the government’s case “smells of utter and complete unreliability.”
“What is the basis for the charges?” Cohen said “The meaty basis of this case is the statements made by KSM (Khalid Sheikh Mohammed) and others. And (most of) those statements, if not all of them, were made under harsh interrogations.”
When asked if Hayden’s admission could complicate the case, Hartmann said it would be up to the military judge to determine what evidence can be admitted.
Along with the interrogations, a recurring problem facing defense attorneys who have tried to defend detainees before commission has been access to other detainees as witnesses and to classified material. The Pentagon has continually objected to such access because of concerns over national security. Those will also be issues confronting Judge Crawford.
But Hartmann said the six accused men would be given the same rights as U.S. troops tried under a military justice system.
The suspects, for example, will be allowed to call witnesses and will be appointed military attorneys as well as have the right to hire civilian attorneys. They will also be allowed to review any evidence presented against them, Hartmann said. If convicted, appeals can ultimately go to the Supreme Court.
While the trial will not be televised, journalists will be allowed to attend, and arrangements will be made to allow the family of the Sept. 11 victims to view recordings of the proceedings in private, Hartmann said.
“There will be no secret trials,” Hartmann said.
Wow…that’s crazy. I wish the author would have provided us with some information about why these men are being accused and what evidence is being held against them. I mean seriously, they don’t just walk by someone and think, “oh, that person looks like they helped plan September 11th, lets go walk up and ask him.” There has to be a good reason…so what’s the good reason in this case? What proof is there connecting these six men to September 11th?
All of the information about the military commissions is all new to me. I have never heard of it before. I can’t believe it is allowed to go on even after being reviewed in court. I mean, it makes sense that regular courts might not be able to handle something so big as trying people accused of being terrorists, but come on…waterboarding? That’s so awful. And isn’t it kind of illegal? I remember one day in class we talked about a court case (I think it was Michigan v. Jackson, but I could be wrong.) in which the confessions of the respondents were obtained in violation of the sixth amendment and completely thrown out the window. So would the confessions of the six men accused of being part of the September 11th attack, if obtained during torture like waterboarding, be irrelevant? And wouldn’t waterboarding be a violation of the eighth amendment and it’s protection from cruel and unusual punishment? (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”) because waterboarding sounds pretty darn cruel and unusual to me!
Wow, first off I am no longer proud to be an American.
What kind of sick man, who says he is a moral and right man, a Christian, a scholar, could possibly instruct the military to open a base of US soil so they could find a loophole to torture criminals? George W. Bush, you are an animal (ha-ha monkey!) and you should be impeached for this, if for nothing else. You dirty lying SOB.
In a land where the law is based on principles, where right and wrong rule, it should be obvious that torturing even the foulest of prisoners, even before their trial, is evil. That brings the whole US down with one bad president who authorized all of this, George W. Bush. Thank you for screwing up our country.
Okay, now that I’ve gotten my Bush hatred out.
This article mentions litigation, litigation is when a cause takes their cause to court in order to get their policy agenda through. The courts will rule and if they rule in the side of detainees then the prisoners could “challenge their detention in federal court outside the commission process”. I’m not quite clear on what that means, but I know that it would probably give the 9/11 mastermind and his sick friends the chance to detest the fact that they were tortured in jail. Instead of following the law, they screwed it up so now we are slowing down the process and letting these guys live, day after day for the hundreds of American lives they took from us. They have the right to a speedy trial. This happened almost 7 years ago anyway. It is outrageous that they are still living, and are able to be tortured. But since the military in Cuba didn’t follow the law, didn’t follow what’s right, we are stuck feeding and housing these horrid animals longer.
First of all, I think that the “technique” of waterboarding is horrible, and to be honest I’m rather sickened by the fact that such a despicable act was committed not only with US consent, but by the US military. I mean come on, we are talking about simulating drowning to the extent that the practice is “prohibited by the Geneva Conventions and the U.S. Army Field Manual, and most of the international community considers the technique torture.” The 8th Amendment is centered in protecting people from “cruel and unusual punishment”. I know that technically the Constitution and its Amendments only pertains to US citizens, but it seems very hypocritical to me for the US to say that ALL MEN have certain rights, then to turn around and say that they can abuse another persons’ humanity just because they aren’t a US citizen. I know that this is all very idealistic, and that some times we have to do things that we don’t like, but torturing someone, not to attain information vital to National Security or to save American lives, but simply to get a confession seems deeply and fundamentally wrong to me. I very strongly feel on an elemental level that two wrongs DON’T make a right, and just because one person violates another’s basic rights, that doest justify our retaliating in kind. Literally torturing inmates to obtain a confession is an atrocity we may picture being committed by the Gestapo in Nazi Germany, but certainly not right here in the US, and I want to know how it can be acceptable for us to do it, if it is so blatantly unacceptable when others do it?
Andrew Barnes
Okay has anybody seen Michael Moore’s Sicko? Well if it’s anywhere close to accurate then I’m wondering how Guantanimo bay violates human rights. I mean I know people are interred there without habeas corpus and that there has been some torturing and abuse from the guards. But other than that, those prisoners have full medical treatment, recreational areas (pretty nice ones actually) and libraries. Seriously we treat those monsters pretty well and honestly human rights should be taken away from murders and terrorists… that’s my human gut feeling… now the logical side of me realizes that I might sound like a hypocrite of sorts especially when it comes to my opinions on America’s so called “terrorist accusations.” So in all fairness I will say this, despite the crimes these “men” committed they are still being tried within our court system, therefore as specifically outlined in our constitution which we have all read or have (especially since we lose thirty points if we don’t) they still have the same rights as anyone else tried within our court system, and yes that includes no “water-boarding”. To the people who say nay to this just stop and remember that these are the men behind 9/11, they’re screwed either way. I’m pretty confident that whether they get a fair trial or not they will still meet the ultimate fate of death, and by some miracle these men are found innocent I’m sure some government official will see too it that they mysteriously “disappear” while enjoying their freedom. Suck it up America, give them some rights, and let’s try not to look even more stupid than we already do.
RE: Everyone Above
You know I’m going to go on the complete opposite end of this story and support what tactics we used towards these terrorists. (Mainly because we aren’t allowed to have agreeing responses and I can tell that no one wants to look like an insane sicko, but what the heck, I will). Ok, surprise, surprise, not everyone is all nice and dandy to everyone. Have you people forgotten what these men have done? What they plan on doing to us in the future? Many lives were killed, families lost, areas destroyed, and left America with a scar that will never disappear. But heaven forbid we think of that, they had a washcloth put on their face! Ok, my brothers have done that to me. Personally toughen up butter cup, I didn’t go around claiming waterboarding, I learned to hold my breath longer. They are alive and getting a fair trial. So maybe these men weren’t treated so “nice” but news flash, they aren’t nice men. I guess the rule of “treat others how you want to be treated” applied. They hurt us, so, we hurt them. However, we didn’t kill anyone, they still have all their body parts they came in with, and get a fair trial.
Guantánamo bay is located “technically” in Cuba but we have territorial control. Which our presence there is viewed illegal by the Cuban government stating that the Cuban-American Treaty violates the Vienna Convention on the Law of Treaties. So I’m curious to whether this is void? What someone does on someone else’s soil apply here? Just a little point I was interested in.
-Caitlin Barschig
Because Andrew we didn’t kill over two thousand of their citizens for no reason. When it comes to these guys, I don’t care what we do to them because it is obviously certain that they didn’t care about what happened to us. And it even says they’re not going to die, so why not give them a little scare? But your right, maybe splashing a little water on them is unjust since they MASS MURDERED OVER 2,000 CITIZENS. And I don’t think that this attack was “violating basic rights.” Basic rights are taking away a newspaper company for no reason, not a terrorist attack like this. Now we are on a whole different level than “basic rights.” And compared to how other countries torture people, this is a really sally way of doing it. My brother used to hold my head under water as a joke when we were in the pool. I came out fine and they will too. But what if we did things different? What if we found their base, walked in, and got in a shoot out and shot them all. Now is taking a bullet worse than some water or do we see that as just traditional war? Because of what they did, I don’t see this as an unjust way of doing things, shoot I’ll fill the buckets.
In response to the people who are against the technique of waterboarding because it violates the 8th amendment, well I got a question for you guys; would you still be against the technique if it might save millions of lives? Think about it. If one these terrorists planted a bomb in Washington D.C and the government had one of the terrorists, who knows the location of the bomb, should they torture the information out of him or follow the Constitution and give the terrorist the right to remain silent and have a lawyer present? It’s not like the CIA can be polite to the prisoner and ask him, “please tell us where the bomb is.” It does not work like that. If it meant saving the lives of thousands of people, then I would use waterboarding to get the information out of the terrorist. I know these men are human, but they are not nice people. They hate our country and want to harm the lives of millions of people. Think of what they have done, they set up the 9/11 attack, which shattered the lives of many families. Do you really want these men back on the streets so they can go plan another 9/11? I don’t. I’m not saying that the government should use this technique freely, but if it meant saving the lives of millions of people then I would support the use of waterboarding.
First of all Vanessa Stranahan, how can you not be proud to be an American? I mean look at all the rights that we as citizens have and the reason in which we have them. If it was not for the government taking what they feel as necessary precautions, are nation would be under more and more threat. Second of all, one man like George W. Bush does not ruin and bring down our country. It also involves many others who would have to follow the decisions of a unwise individual with power. Also. If they are horrid animals that that have information on what happened on 9/11 and maybe feature plans. Why not do anything humanly possible to insure a safer environment for American’s. As for the court case, litigations does not mean when a cause takes their cause to court in order to get their policy agenda through, but to carry on a legal contest by judicial process. I agree that they have a right to a speedy trial, but I think that the government wants to make sure that all the possible ways for them to get out of prison are removed and that all the possible information that can be gained from is.
Response to Vanessa
It seems really funny to me how fast people’s minds can change. I seem to remember the week after September 11, American flags flew proud in everyone’s yard, “I’m Proud to be an American” was practically played every morning on the announcements and each student said the “Pledge of allegiance” more meaningfully. I can remember old men saying how we need to “go get them sons of bitches for what they have done”. America wanted revenge for what happened to them, just or not. Now everyone is all pissed at Bush, for what. You want to know how much torture and crap you don’t even want to know about went on before we were ever born, with previous presidents: A LOT. I can’t condemn a man or even the troops who preformed the torture, for trying to do their best, and their job, and help us. Bush isn’t allowing this to go on because he want revenge, come one be serious, he is doing this to protect us and help us. People who can’t see that and only care about the rights of the horrible terrible men, who put a whole country in mourning and agony, are in my opinion being very naive about the whole thing.
Mallory Brown
Congress has been debating legislation that would govern the questioning of suspected terrorists, and a key issue has been what interrogation techniques can be employed and whether information obtained during this torture can be used against those on trial. An interrogation practice central to this debate is waterboarding. Waterboarding is a controversial method for obtaining a confession, this I understand. But I honestly don’t understand why it is so controversial; I frankly don’t see how anyone could say waterboarding is not a form of torture. The media always describes it in a fairly nonchalant way, saying waterboarding “simulates drowning” or makes a prisoner feel “in danger of drowning.” It’s actually pretty strange, but for the first time in a while I feel like the media is actually downplaying this; I am too used to the election where everything is overly hyped. Anyways, after a quick Google of “waterboarding” I was shocked to see how barbaric this interrogation practice used by the United States really is. I had never actually seen what waterboarding actually looks like, and in all honestly the device looks like it belongs on the set of a horror movie. I know the men in question are horrible, villains but is the U.S. really going to say it’s okay to use the same interrogation methods on them that the Khmer Rouge used?? And in all honesty how reliable are confessions obtained from people who feel like they are going to die… I know I would say anything, whether fabricated or not, to get me out a waterboarding “interrogation” session.
Reply to Caitlin
First of all, I just can’t agree with you that these men should be treated this way. You said, “They hurt us, so, we hurt them. However, we didn’t kill anyone; they still have all their body parts” I think that this is an absolutely groundless justification. It sounds like kindergarten you know, he ruined my drawing so I ruined his. This is ridiculous, someone has to stand up and be the mature moral person. We should be very careful about the actions we take, whether they are on US soil or not. How can we invade two countries for “moral” reasons then go and treat our prisoners like this. We are outraged about how they treat their prisoners, then we act the same way and our only justification is that they did it first. If we continue down that road, it becomes a vicious circle of them doing something, us retaliating in kind and then them striking back. See were I’m going with this? Yes it is hard to fight a clean fight against someone who revels in fighting dirty, but we have to. If we don’t then all our talk becomes hypocritical preaching from our pedestal and we become no better than what we fight against. You might be thinking that we need to fight fire with fire, but how can we when we know that if we do that, then win or loose all we are left with is ashes?
Andrew Barnes
Reply to Caitlin
Really buttercup? Your brothers water-boarded you? Wow that’s crazy, I’ve known you practically my whole life and I had no idea you were a terrorist. So I’m guessing when your brothers found out and started interrogating you they were probably beating you senseless while giving you that drowning sensation, yeah I bet you could hardly stand after that, probably couldn’t do much of anything after a debilitating interrogation process like that, but hey toughened you up right? I mean you learned to hold your breath longer! Yay!
Anyways now that I’ve had that crazy revelation about you I just need to point out to you that no one has forgot what these men have done, far from it. Its just that not all of these men are terrorists… yeah some of them have been wrongfully accused (great movie) and performing borderline sadistic interrogation tactics on them can be a little bit inhumane.
Oh and they are also NOT getting fair trials because apparently our government claims that, as you pointed out, Guantánamo is in Cuba and the U.S is claiming that all trials take place in their jurisdiction and I’m guessing since that country is run under a DICTATORSHIP trials probably aren’t the greatest thing the whole world.
You also said something to the point of they hurt us we hurt them, well an eye for an eye makes the whole world blind… but Ghandi’s dead so whatever.