Will the 9/11 Defendants Ever Get a Fair Trial?

I spent last week in Guantánamo Bay, where I was supposed to be observing four days of pre-trial hearings in the military commission prosecution of the 9/11 defendants. But as is so often the case, on three of those days, the hearings were closed. On the single day of open hearings, the proceeding focused on the government’s destruction of key evidence in the case. This past weekend, defense lawyers confirmed that the evidence concerns a secret CIA black site abroad where the defendants and others were severely tortured.

Almost 15 years have passed since the attacks of 9/11, and yet the Guantánamo military commissions are still muddling through pre-trial motions, with virtually the same confusion and lack of transparency that has characterized these proceedings for years. The dichotomy between the importance of the proceedings and their virtual absence from public discourse is astonishing.

The proceedings that did take place last week focused on the government’s destruction of evidence, which may have been irreplaceable for the defense, and over which the judge had issued a protective order. Defense attorney David Nevin, who represents Khalid Sheikh Mohammad, referred to this evidence as “among the most important evidence of the case.” As Nevin argued, the government’s torture and mistreatment of the defendants is central to the question of whether they can lawfully be subject to the death penalty.

This key issue has been percolating for some time.

More than two years ago, the judge presiding over the trial, Army Col. James L. Pohl, issued a protective order to preserve what’s now confirmed as CIA black site evidence. At some point after that, the prosecution had a closed-door hearing with Judge Pohl. Without defense counsel’s participation or even knowledge, the prosecution convinced the judge to lift the protective order, and the government then destroyed the evidence. The defense lawyers said they didn’t know that the protective order had been lifted and the evidence destroyed until 18 months after the fact, at which point it was far too late to go to court to prevent the damage. Although the prosecution characterized the lack of notice about the evidence’s destruction as “regrettable,” it claims that no harm resulted.

Because of the secret destruction of this critical evidence, the defense team requested that both the prosecution team and Judge Pohl be recused and that a separate judge decide whether recusal is appropriate. On Thursday, defending the secrecy in which the evidence was destroyed, prosecutor Bob Swann said to Judge Pohl, “There is no reason to recuse yourself. You have done nothing wrong, nor have we.”

The public doesn’t know exactly what this evidence consisted of or whether the government may still be able to remedy some of the damage. But what is important here is that evidence – in particular, evidence of torture and mistreatment of the defendants – was withheld from the defense and deliberately destroyed in one of the most important capital cases in U.S. history.

If I could distill one message from the prosecution’s argument on Thursday, it was this: The government’s right to secrecy trumps other considerations, including the defendants’ rights. This argument applied to evidence of the shocking torture to which these men were subjected, rendering it an inconvenient but irrelevant fact. With public support for torture on the rise and a presidential candidate who openly applauds torture and wants to return to the most extreme forms of inhuman and degrading treatment, the government’s apparent efforts to obfuscate its use of torture are deeply troubling.

When these proceedings began, the Bush-era torture policies were still in place. When Obama came into office in 2009, he confirmed an end to those policies, renounced torture, and vowed to close the Guantánamo detention center within a year. Now, nearly eight years later, Guantánamo is still open, and the most important terrorism trial in our country’s history is stumbling through initial proceedings, marred by yet more allegations of government misconduct.

With President Obama’s departure on the horizon and his legacy at stake, there has been nothing that resembles justice coming out of these Guantanamo tribunals.  

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Anonymous

The centuries old "concept" of how any law and legal system actually works in a civilized society is pretty basic:

First there has to be "posted" or advertised laws, not secret law, that every person is expected to comply with. How can people follow laws if they aren't posted?

If Executive Branch officials, police and prosecutors, believe the letter & spirit of the statute has been violated - they then seek an arrest warrant or search warrant from a magistrate judge - they then fine, charge or arrest the suspect. The term "suspect" means doubt, not certainty.

If the suspect is fined, charged or arrested - the "accusers" confront the suspect in a Judicial Branch court with the charges against them. The burden of proof is always on the "accusers" not the "accused" (at least in civilized nations).

The American model of justice requires a "speedy trial" since evidence can be lost, memories of witnesses can deteriorate or witnesses die - destroying evidence used for truth gathering.

There is only a wartime exception if combatants are actually captured on a real battlefield firing at our troops - over 80% of Gitmo detainees didn't meet that standard.

In civilized nations the goal is actually getting to the truth through "discovery" at trial - you don't issue a guilty verdict first, then try to fabricate the evidence to meet the fabricated verdict. We didn't operate that way during the Nuremberg Trials of World War Two and shouldn't operate like that today!

The problem is when the suspects are truly innocent, the only crimes actually committed are by the government officials violating federal "color of law" statutes that do apply to non-citizens also.

Anonymous

CIVILIZED! Oh that's lovely. Because what they're accused of doing was so goddam 'civilized.' Their own country would give them the death sentence without even taking as long as we do to actually kill them if they'd done something their own country disliked, but we have to make sure we're not only nice, but CIVILIZED. How charming for us.

Eric died choking on smoke in between begging for help, for breath and for life and all three were denied him. It's "almost 15 years later" and he's still dead because "dead, like diamonds, is forever."
We've listened to the tape of him asking for help; it hasn't been publicized, just like Flight 93's hasn't been shown to the public, because he's begging for his life and choking on smoke. Everyone on Flight 93 is screaming while they go toward the ground, except the bastard who's saying 'Allah hu akbar' while he dies.
As long as nobody expects me to show mercy or sorrow for these so-called "people," who AREN'T innocent - have only been MADE to look it by their even WORSE attorneys - I don't care what you say, but I don't think I'll ever understand why we have to be more civilized to them than we do the victims. They have way more rights than every single person they helped kill. Khalid Sheik Mohammed is guilty as sin. He even asked to be tried under Sharia Law after committing the crime under US law. His arrogance knows no freakin' boundaries. And if they hate all Americans so much why are we paying for them to have American attorneys. They don't even like them.

Anonymous

The defendants aren't following laws anyway, and they're NOT "truly innocent." Other people in law have said so and shown proof of their statements. Benjamin Wittes wrote an article about Mohamedou Slahi, in which he said Mohamedou Slahi "Is certainly not a character one can whitewash."

Anonymous

The officials at Guantanamo, that swore to uphold the U.S. Constitution, should watch the Bush-era movie "Amistad" created by Steven Spielberg starring Anthony Hopkins, Morgan Freeman and Matthew McConaughey.

It's based on a true story and the actual legal arguments made in front of the U.S. Supreme Court. In some ways the legal arguments in the film are very similar to Guantanamo, except in the film the suspects actually did do the crime and actually received a trial.

Anonymous

One of the primary reasons for America's once great "Independent Judiciary" is that it provides political cover for politicians of the legislative and executive branches of government.

Since many, not all, of today's judges have become partisan politicians themselves running for popular election - we no longer have an American style Independent Judiciary.

Real judges, first and foremost, follow the U.S. Constitution and it's subordinate statutes (Supremacy Clause) - they aren't subordinate arms of the executive branch agencies - they are co-equal branches. If judges would do their oath-sworn duty, it would give the legislative and executive branch politicians "political cover" from the voters.

James Madison termed today's practice as the "tyranny of the majority" and judges were designed by the Founding Fathers to "check & balance" that mob rule demand of the voters during times of high emotion.

During World War Two, maybe America's greatest prosecutor ever, Robert Jackson, had that integrity and backbone to place the rule of law over politics - as the oath of office demands!

The weak link since the "War on Drugs" (Terry V. Ohio) and the "War on a Tactic" after 9/11 has been the Judicial Branch - that's where major reform should start to restore America's once great Independent Judiciary.

oldephartte

Years ago ( likely 2004 ) I was following the controversy at what was then Kevin Drum's Political Animal weblog at Washington Monthly over the implications of the use of torture and what constituted torture. Posting as opit, I noted the thoughts of exMI at Somebody Should Care, Maybe Not You ( exMI.blogspot.com ) who represented himself as a teacher who had been an interrogator/trainer : the results of interrogation were totally compromised because the victim would say whatever he thought might make his pain stop. Further to that, I concluded that torture had only one reliable result : the extraction of false confessions.

Anonymous

You know gd well it's the attorneys' faults that this is going on. That and stupid-bleep BUSH and his freakin' psychotic attorneys.
Just because torturing a prisoner is a "mitigating circumstance" doesn't mean the person didn't do something.
It galls me to no end to even hear anyone talk about them like they're poor pathetic (mistreated) souls. I didn't mistreat them and never thought they SHOULD be; after all, it's ruined every single case.
But Eric and 2,988 other people are still dead because of it. What rights do they have. Oh yeah. Still none; 1,770 people didn't even get to have their earthly remains.
I'm sorry. I can't find it anywhere within me to feel anything for them, and that DOESN'T mean I think they should have been tortured. That ruined all the cases. Why would I want something that has destroyed all the possibilities for any earthly justice anywhere.

from a family member of a Sep-11 victim

Anonymous

"Men" my eye. If they really did do what they're accused of doing they were worse than animals, worse even than monsters. The Thing, which I'm about to watch on Throwback Thursday's horror channel, had more manners and niceties than them.
My daughter's dad died begging for his life, choking on smoke and trying to ask for help. I'm sorry if I'm low on pulling out sympathy for THEM'S who helped do it. KSM DID aid and abet the crime, and he's had the ARROGANCE to even ask for a trial under Sharia Law. You didn't commit a crime in a country with Sharia Law, you don't GET to have a trial by that and IMO you don't even have a right to have asked for it.

from a Sep-11 victim's family member

Vicki Bee

They CAN'T be subjected to death, no thanks to f'n CHENEY and their merry band of criminals who brought this possibility of life sentences into existence. I hate them almost as much as I despise the people who did what they did, the ones who died in less than a second while Eric took 10 MINUTES to die. The guy who flew the plane into Tower 1 was dead in half a second and never felt anything, or HARDLY anything. I've heard the 911 tape of Eric choking on smoke and asking for help that never arrives because it can't get there in time. In this one part of the tape he's choking on smoke like nothing I've ever heard, and I'm a paramedic. I've heard people in distress while in structure fires. This seemed way more distressing than anything I've seen on the job.
The only thing the attorneys of the accused care about is making sure THEY don't get the death penalty, bc it's so unreasonable to even consider it after they killed thousands of people withOUT mercy and show none now. But they'll get to live no matter what because of BUSH and CHENEY and RUMSFELD, who just a few weeks ago was given a Golden Fleece award, which I think is gd STUPID. Stupid, stupid, stupid. He authorizes torture and the ruination of our case against the people who killed our loved ones, and he's there accepting a gd Golden FLEECE award.
I voted for Bush/Cheney but not for this reason, never EVER for this reason. I thought they were going to get justice the normal way, whatever that actually is, but I think there's something aggressively wrong with people who would let them go free to possibly harm someone else. Khalid Sheikh Mohammed, like every one of the accused, has no remorse at all. No remorse means he'll do it again bc he doesn't think he did anything wrong in the first place. He was definitely a member of Al Qaeda, knew Osama bin Laden personally and was in full cahoots with him. Those are facts, not statements of emotion. A statement of emotion would be that I think this joke of a "legal proceeding" is an insult to the memories of the dead. If they get to be released into an open society it'll be the biggest insult ever and I don't believe they'll stop being terrorists, especially not KSM.

Eric was never like what they seem to have believed of him. This was his favorite poem. I acquired it from him after the reading of his Will. It's one tiny aspect of who he was.

'The Cold Within'

Six humans trapped by happenstance in bleak & bitter cold
Each possessed a stick of wood, or so the story's told,
Their dying fire in need of logs the first man held his back
for of the faces around the fire he noticed one was black
The next man looking across the way saw one not of his church
and couldn't bring himself to give the fire his stick of birch
The third one sat in tattered clothes, he gave his coat a hitch
Why should his log be put to use to warm the idle rich
The rich man just sat back, and thought of the wealth he had in store
and how to keep what he had earned from the lazy, shiftless poor
The black man's face bespoke revenge as the fire passed from his sight
For all he saw in his stick of wood was a chance to spite the white
The last man of this fallen group did nought except for gain
giving only to those who gave was how he played the game
Their logs held tight in Death's still hand was proof of human sin
they did not die from the cold without they died from the cold within. -James Patrick Kinney

Vicki Ann

It's the Defense Team's FAULT the trial is taking so long, thanks to how VIGORously you want to defend their right to live & prosper after killing my daughter's dad and thousands of other people.
It's also the Prosecution's fault that they can't get the death penalty anymore, no thanks to Cheney & Bush & their psychotic attorneys who rewrote the Constitution to allow for torture.
Will the people who were burned alive, crushed to death or blown to smithereens on the planes ever get any justice for what was done to them? Or will we always have to sit at the Thanksgiving table with an obvious 'Empty Space' where he would have sat if he were here and not been "pummeled into unidentifiable bone fragments," according to how the Coroner's Office of New York City told it?
My guess is no matter what sentence they get they'll gets visits from their families & friends, talk & share photos. None of the families of the dead will ever see their loved one on earth nor create new memories with them. We have to force ourselves to adjust to a grim reality we never asked for, created by the very people for which you feel 50 tons of empathy.
I'm sorry but from my position, I can't find a great deal of sorrow for them. I'm angry that they were tortured bc none of the family agreed to it (or even knew it was happening) and it ruined our case. But that's as far as my distress for the accused goes.
Before someone I know was killed this way I seemed to have a mild ability to feel for them, but not now.
Nothing that happens for them will feel like justice for what they did. The mystery write was correct when she said "Murder is a crime for which no restitution or no balance of justice can occur."

from the family & friends of
Eric L. Bennett
10/17/71-9/11/01

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