Victory for the Rule of Law: an analysis of decision to move 9/11 defendants to federal courts

By Human Rights First Senior Associate Sahr MuhammedAlly, cross-posted from Foreign Policy’s AfPak blog:

The Obama administration’s decision to move the trials of the five Guantanamo detainees accused in the 9/11 conspiracy — including Khalid Sheikh Mohammed — from the discredited Guantanamo military commissions and into federal civilian courts to face justice is a victory for the rule of law. Eight years later, the United States is finally bringing justice to the victims of the 9/11 attacks in a forum that is legitimate and credible. But the Justice Department should go further and try all detainees at Guantanamo in federal civilian courts, not military commissions.
I have observed several military commission hearings in Guantanamo including the arraignment of the 9/11 defendants in June 2008. What I saw in every hearing was a second-class system of justice that made up rules as it went along, used unfair evidentiary standards for defendants, and subjected some detainees to ill-treatment and abuse. At the June 5th arraignment of the September 11 defendants I recall thinking that should trial in the military commissions system continue, the American justice system will be as much on trial as the defendants’ alleged crimes. But with the announcement that the cases will be transferred to federal courts, the government has recognized the need to shift the focus from the legitimacy of the judicial process to the validity of the actual accusations against the detainees.

Federal courts have a long and impressive track record of prosecuting complex terrorism cases while upholding due process and protecting national security. In a comprehensive study of 119 terrorism cases with 289 defendants, Human Rights First found that of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. By contrast, only three have been convicted in the broken military commissions. (For the full reports, see In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court (2008) and In Pursuit of Justice Update (2009)).

Although the cases of Khalid Sheikh Mohammed, Ramzi Binalshibh, Waleed bin Attash, Mustafa Ahmad al-Hawsawi, and Ali Abd al-Aziz Ali will be tried in federal courts, the administration is still pursuing prosecution of a number of individuals via military commissions, including the suspected planner of the USS Cole bombing in Yemen in 2000, Abd al-Rahim al-Nashiri. And though new reforms to the military commissions include some improvements over previous laws, they still fail to provide many of the fundamental elements of a fair trial. For instance, military commissions continue to permit the admission of coerced testimony obtained at the point of capture; they use an overly broad definition of who can be tried before military commissions that includes juveniles and those not accused of engagement in hostilities; and they permit defendants to be tried ex post facto for conduct not considered a war crime at the time it was committed. Military commissions thus retain the possibility of unfairness and their continued use perpetuates the damaged legacy of Guantanamo.

The Justice Department made the right decision to transfer the cases of the 9/11 attacks to New York courts for prosecution. But by dividing detainees into different categories –those able to be tried in federal courts and those who will face military commissions — the administration is sending a message that there is not enough evidence to try some detainees in federal courts and that those detainees deserve a second class system of justice that cuts corners. All Guantanamo detainee cases should be tried in federal courts. Only by pursuing this route can the United States return to a system of justice that upholds American values and laws and makes a clean break from the shameful era of Guantanamo.


Published on November 16, 2009


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