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The Champion

July 2012 , Page 61 

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9/11 Trial Underway at Guantánamo Bay (Military Commissions Perspective)

By Mason C. Clutter

Read more Military Commissions Perspective columns.

Editor’s Note: NACDL is one of the nongovernmental organizations authorized to observe military commissions at Guantánamo Bay. On a regular basis National Security Counsel Mason C. Clutter will provide an update, from her perspective, on the proceedings involving the alleged 9/11 co-conspirators. 

9/11 Trial Underway at Guantánamo Bay

“Do I like the men? Absolutely not. Do I respect the people who are defending them? Yes, because they are doing their job.” So said Eddie Bracken, brother of a 9/11 victim and chosen media spokesperson for the family members who attended the arraignment of the alleged 9/11 co-conspirators on May 5, 2012, at Guantánamo Bay, Cuba. In a letter Mr. Bracken said he wrote to Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks, he stated, “You don’t deserve a fair trial, but according to our Constitution and the Sixth Amendment you do.” The Department of Defense (DoD) invites select 9/11 victim family members to observe proceedings at Guantánamo, but DoD does not seem to do a very good job explaining to the family members what exactly is happening at Guantánamo and why. For instance, someone within the government should tell Mr. Bracken that the U.S. government does not believe that the Constitution applies at Guantánamo, that only those rights statutorily provided for in the Military Commissions Act (MCA) of 2009 and habeas corpus rights as mandated by the Supreme Court’s 2008 decision in Boumediene v. Bush apply at Guantánamo. Mr. Bracken, like many of the invited victim family members, is under the impression that “according to our Constitution and the Sixth Amendment,” Guantánamo detainees are entitled to a “fair trial.”

As a matter of fact, the issue of constitutional rights came up during the last hearing in the case involving Abd al-Rahim al-Nashiri — the alleged U.S.S. Cole bomber. Acknowledging statutory rights provided to detainees under the MCA, Judge Pohl asked both parties if any other constitutional right, other than habeas corpus, applied to detainees at Guantánamo. Chief Prosecutor General Mark Martins responded that he was “aware of no authority.” Defense counsel responded that he too was not aware of a case that found detainees held constitutional rights other than the Boumediene decision. Of course, defense counsel later argued that the Constitution did apply in Guantánamo, but the general application of the Constitution was not actually before the Court. Until a direct ruling is made on that particular question, the answer remains a resounding “?” The government does not go around bragging about this point when it sends General Martins around the country assuring listeners that the commissions system is fair and protects the rights of the accused.

Nor does the government boast about the fact that because of decisions made by both the Bush and Obama administrations, victims of 9/11 and the U.S.S. Cole bombing are still awaiting justice over a decade later. The victim family members instead believe the delay is a result of defense attorneys’ (1) requests for time to investigate their cases and (2) requests for resources. The Convening Authority (CA) is the person appointed to provide resources to the defense. The requests for resources will likely consume months of back and forth among the CA, defense counsel, the judge, and the prosecution. In military commissions, the government has the opportunity to rebut the defense’s claim that a particular resource is necessary to a fair trial and effective assistance of counsel.

The media does not focus on this either. Instead, media coverage of the 9/11 arraignment focused on the behavior of the defendants and failed to cover what actually happened: five men were arraigned for a second time since their capture nearly 10 years ago. They were brought before a military judge in a separate system of justice designed only for them and other noncitizens, which was designed by Congress to make it easier for the United States to convict them. After 10 hours of watching every move the defendants made, like watching animals at a zoo, the reading of the charges against the defendants was a reminder to observers of the seriousness of what happened on Sept. 11, 2001, and the importance of getting this trial right the first time.

One way the government could have gotten it right the first time is by trying the accused in a traditional federal criminal court. NACDL has always supported the use of the criminal justice system over the use of the Guantánamo military commissions. Now, however, both Congress and President Obama have agreed that is not a possibility. The flawed commissions system must now move forward in the fairest way possible.

A key component to fairness is ensuring that the defense is provided with the resources it needs to zealously represent the defendant and provide effective assistance of counsel. As with the al-Nashiri case, it is clear that defense resources will be a hotly contested issue in the 9/11 case. Likewise, the issue of the attorney-client privilege and the existing orders governing the transmittal of mail between attorney and client will be challenged in the 9/11 case. In fact, the defendants have already filed motions challenging the categories of contraband, including any discussion of jihad, defined in the camp Commander’s December 2011 orders governing detainee mail. NACDL’s Ethics Committee issued an ethics opinion,1 finding that the 2011 orders violated the attorney-client privilege and for all practical purposes denied effective assistance of counsel to defendants subject to the orders.

When the 9/11 military commission convenes again in August, the issues before the tribunal will be many. Defense counsel for various defendants are expected to challenge the defective referral of the charges, the system of presumptive classification at Guantánamo, where everything a “high-value” detainee says is considered classified (even if the detainee says “I like pizza”), the effects this policy has on the defense’s ability to build a defense and investigate mitigating evidence, and the treatment of some defendants and their conditions of confinement.

An underlying issue that will permeate the 9/11 trial from beginning to end is the issue of the defendants’ treatment at the hands of the U.S. government after their capture and before their arrival at Guantánamo Bay. Use of so-called “enhanced interrogation techniques” will cause observers to question the overall fairness of the military commissions and any convictions that may be handed down. Defense attorneys argue that even though the government is prohibited from using evidence tainted by mistreatment, once any evidence is tainted by mistreatment or coercion all of the evidence is tainted. While the prosecution is prohibited from using direct evidence obtained by torture or cruel, inhuman, or degrading treatment, the prosecution is not prohibited from using derivative evidence obtained by such treatment. NACDL finds this to be a serious flaw in the military commissions system — one that makes the system inherently unfair. It is always within the prosecutor’s discretion to use certain pieces of evidence, but, to date, there has been no indication from General Martins that the government will abstain from using such derivative evidence.

Even in the military commissions there is a presumption of innocence until proven guilty; however, by denying the 9/11 defendants fundamental constitutional rights, this presumption is swayed in favor of guilty from the start. But, there may be an opportunity to undo this presumption in light of a new motion filed by defense counsel in the 9/11 case seeking for general application of the Constitution in the 9/11 military commission — if the government does not oppose its application and if the judge rules in favor of the Constitution. It is not too late for the government to adhere to the principles believed in by 9/11 victim family member Eddie Bracken: This is America, and according to our Constitution these men deserve a fair and just trial. “It’s about our justice system and how we uphold it.”


  1. Read the ethics opinion at www.nacdl.org/gtmoethicsopinion.
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