9-11 Victims, Justice Disserved by Military Commissions System

Guantánamo Bay, Cuba, June 5, 2008—The trials of five Guantánamo detainees being charged for their role in the September 11th, 2001 attacks should be moved from the Guantánamo military commissions to U.S. federal courts, reported a Human Rights First representative who is observing the hearings today.

The United States has charged Khalid Sheikh Mohammed, Ramzi bin Al Shibh, Waleed bin Attash (aka Khallad), Ammar al Baluci (aka Ali Abd Al Aziz Ali), and Musatafa Ahmed al Hawasi as alleged conspirators in the September 11 terror attacks. The United States is seeking the death penalty against each of the five detainees. All five men were in secret CIA custody for several years until their transfer to Guantánamo in September 2006. All have reportedly been subjected to highly abusive interrogations that in several instances amount to torture. Commission rules that permit the military commissions to rely on evidence obtained by these illegal means is expected to be a central issue in these cases.

Khalid Sheikh Mohammed and Waleed bin Attash are refusing military counsel. Without proper representation, it is unlikely that any of these men could receive fair trials.

“The victims of September 11th and the American public deserve justice. But these military commissions cannot deliver it,” said Sahr MuhammedAlly, Senior Associate in the Law & Security Program at Human Rights First, who is currently in Guantanamo as a human rights observer.

More than six years after the commissions were first announced, not a single case has gone to trial, and only one person—David Hicks—has been convicted. Hicks pled guilty to a charge of providing material support to terrorism in exchange for a nine-month sentence. In contrast, federal courts have a proven track record in prosecuting terrorism-related cases and have prosecuted over 100 such cases, both pre- and post-September 11th.

“The United States should move these cases to federal courts and end the failed experiment with the military commissions system. The focus in these cases should be on the crimes and not the trial process. But that will never happen so long as the process is is fraught with questions of legitimacy and fairness.”

“Detention without charge and the military commission system have led to nothing but protracted litigation and even internal dissension within the military command structure,” MuhammedAlly adds. “This is not just a concern within the human rights community; Secretary of Defense Robert Gates himself has warned that commission trials at Guantanamo will have a ‘taint’ to them.”

According to a Human Rights First report, Tortured Justice, the military commissions allow the use of statements obtained through cruel and inhumane interrogations, so long as the interrogation took place prior to 2006, and the military judge finds the evidence “reliable” and “in the interests of justice.” Commission rules also allow the prosecution to withhold classified evidence relating to a defendant’s interrogation or the interrogation of others, making it extremely difficult for defendants even to establish that evidence was obtained through torture or other coercive interrogation methods.

By contrast, in civilian criminal courts and regular military courts-martial, coerced confessions are inadmissible, the introduction of hearsay evidence is restricted in the interest of reliability, and the rules governing the disclosure and introduction of classified evidence are clear. The civilian justice system has capably handled challenging terrorism cases without compromising national security or sacrificing rigorous standards of due process. Last week, Human Rights First released a report entitled, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. The report examines more than 120 international terrorism cases prosecuted in the federal courts over the past 15 years and bases its findings on interviews with judges, prosecutors and defense lawyers with firsthand terrorism litigation experience. The report concludes that federal courts have been adept at navigating complex terrorism cases, and federal prosecutors have obtained convictions—as well as lengthy prison sentences—in some of the most serious terrorism cases.

As one of only four organizations that have been granted status as human rights observers at Guantánamo Bay, Human Rights First has attended every hearing since they began in 2004. Over time, Human Rights First—along with government officials, military personnel and legal scholars—has raised increasing concerns about prosecuting detainees under a system that ignores the fundamental tenets of due process, allows the admission of evidence obtained through abuse and possibly torture, and the commission’s vulnerability to undue and potentially illegal executive pressure.

Available for interview (contact Krista Minteer, 212-845-5207):

In Guantanamo – Sahr MuhammedAlly, Senior Associate, Human Rights First

In New York – Kevin Lanigan, Director of Law and Security, Human Rights First

Deborah Colson, Senior Associate, Human Rights First

Richard Zabel, Partner, Akin Gump Strauss Haure & Feld LLP

James Benjamin, Jr., Partner, Akin Gump Strauss Haure & Feld LLP

Press

Published on June 5, 2008

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