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Our Thoughts on the 9/11 Charges? Glad You Asked.

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February 13, 2008

The ACLU is one of the preeminent organizations challenging the government’s torture policies. So naturally, our attorneys had something to say about the Pentagon’s announcement Monday that it will charge six Guantanamo detainees in connection with the 9/11 attacks and seek the death penalty against them.

Jameel Jaffer, director of our National Security Project and co-author, with Amrit Singh, of Administration of Torture, a book about the Bush administration’s torture policies, told The New York Times the Military Commission Act that Congress passed in 2006 forbids the use of evidence gathered through torture at trial. The Times writes:

The judge decides whether to admit information produced using coercive techniques short of torture, a provision that defense lawyers are likely to use aggressively, Mr. Jaffer said.

“Every time they try to introduce a piece of evidence, the defense lawyers are going to say, “This piece of evidence is unreliable'” because of coercion, Mr. Jaffer said.

USA Today quoted Executive Director Anthony Romero:

“Questions of fairness and due process are always at play in death penalty cases, and this will be doubly true in any capital case involving high-value detainees who have been tortured and held for years without access to counsel,” says Anthony Romero, executive director of the American Civil Liberties Union.

“The American legal system will be as much on trial in these cases as the actual detainees,” Romero says.

ACLU Legal Director Steve Shapiro discussed the difficult position the Bush administration has placed itself in by bringing these charges, with the Associated Press:

Steven Shapiro, legal director for the American Civil Liberties Union, said in a telephone interview that ”the administration now has placed itself in terrible bind because it subjected at least some, if not all, the six men to harsh interrogation techniques that the world regards as torture.

If you’ve been reading our attorneys’ blog posts from Guantanamo, it’s clear that the military commissions system is broken. It has yet to complete a single trial because its fundamental due process flaws leave it open to legal challenges. No doubt prosecution of the six alleged 9/11defendants will only be held up as these inadequacies are litigated. But there is another and better way: These defendants, and the rest of those held at Guantanamo Bay, need to be transferred and prosecuted in the tried-and-true U.S. federal court system, which is used to dealing with international terrorism cases, and where justice can finally be served.

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