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US: Don’t Railroad 9/11 Case Through Military Commissions

September 11 Defendants Should Be Prosecuted in Federal Court

The trials of five alleged perpetrators of the September 11, 2001 attacks should be moved to federal court. The rush to bring these cases to trial during the weeks before the presidential election, after years in which the defendants were held without charge or access to counsel, suggests that military commissions at Guantanamo are subject to improper political influence.

“A trial of this historic importance should be shielded from any hint of election-year politics,” said Joanne Mariner, terrorism and counterterrorism director at Human Rights Watch. “Unfortunately the military commissions at Guantanamo have none of the independence of US federal courts, leaving them vulnerable to political influence.”

Five detainees are scheduled to be arraigned tomorrow – including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 plot – on charges of conspiring in attacks that killed 2,973 people. The United States is seeking the death penalty against each of the defendants.

Some defense counsel, who are still awaiting security clearances, have yet to meet their clients. Yet, the chief judge of the military commissions, contrary to basic due process rights, denied counsel’s motion to postpone the arraignment until attorney-client meetings could take place.

At an April 2008 military commissions hearing for Salim Hamdan, the former chief prosecutor for the military commissions Col. Morris Davis testified that he was pressured to bring cases before they were ready. Specifically, he said that top Pentagon officials made clear that the 9/11 detainees needed to be brought to trial before the 2008 presidential election got too far under way. (Colonel Davis resigned in protest in October 2007, and has since served as a defense witness for Hamdan.) The presiding military judge credited Col. Davis’s testimony, ruling that Gen. Thomas Hartmann, the legal advisor to the top Pentagon official overseeing the military commission process, had exerted undue influence over the prosecution.

In the 9/11 case, the prosecution has requested a September 15, 2008 trial date, just weeks before the presidential election. In a case as factually complex as this, such a precipitous start would unjustifiably restrict the defendants’ ability to prepare for trial, and would undermine the credibility of the verdicts. Defense counsel have argued that the choice of timing is politically motivated.

“All of these men have been in US custody for more than five years,” Mariner said. “They could have been brought to trial in 2004 or 2005. That the government has chosen this particular moment to initiate their prosecutions sets off alarm bells.”

On May 29, 2008, the lawyers for the five detainees filed an emergency petition with the newly created Court of Military Commission Review, asking the review body to stop the arraignment from going forward because some defense counsel have not yet met their clients. The petition also stated that counsel have not been provided a means by which to transfer classified information to and from Guantanamo – something that is particularly important given that lawyers’ communications with their clients are deemed classified. The appellate body denied the petition.

In addition to Khalid Sheikh Mohammed, the United States has charged Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi, and Walid bin ‘Attash. Although the United States initially planned to charge Mohammad al-Qahtani in this case, it has since dropped the charges against him.

All five detainees set to be arraigned on Thursday, June 5, were transferred from secret CIA detention to Guantanamo in September 2006. They were originally arrested in 2002 and 2003, but were held for years without charge or access to legal counsel.

The defendants’ treatment while in CIA custody will almost certainly be an issue in the trials. In February 2008, CIA Director Gen. Michael Hayden acknowledged that Mohammed had been subjected to “waterboarding” – a form of mock drowning that has been prosecuted as torture by the United States for more than 100 years. Others were reportedly subjected to other abusive interrogation methods while in CIA custody, such as extended sleep deprivation, use of painful stress positions, and forced nudity.

Whereas US federal courts and courts-martial categorically prohibit the use of coerced confessions, the military commissions allow the use of statements obtained through cruel and inhuman interrogations, so long as the interrogation took place prior to 2006, and the military judge finds the evidence to be “reliable” and “in the interests of justice.” Because the United States refuses to label its interrogation methods unlawful – let alone torturous – it may attempt to admit evidence obtained abusively into these cases.

Additionally, the defense counsel in these cases may be denied access to the relevant information to establish that the evidence in question was obtained through abuse or torture, and should be excluded. Specifically, the military commission rules allow the prosecution to withhold classified sources and methods of interrogation from defense counsel. This will make it extremely difficult for counsel to establish that evidence was obtained through torture or other coercive interrogation methods.

Human Rights Watch has repeatedly called for cases being tried before the military commissions to be transferred to US federal courts, which have tried dozens of terrorism cases since 9/11.

“The credibility of the verdicts can only be assured if the defendants are tried fairly before an independent court,” Mariner said. “A fair trial in federal court would not simply protect the rights of the defendants, it would demonstrate to the families of 9/11 victims and to the world that justice has been done.”

Of additional concern, on May 29 the military judge in Canadian Omar Khadr's case was removed without explanation, just weeks after he criticized the government for trying to pressure him to set a trial date before the prosecution had complied with their discovery obligations. Human Rights Watch said that the summary removal of a judge from a case underscores how the military commissions fail to meet the fair trial standards of federal court proceedings.

Only eight other defendants have been formally charged by the military commissions authorized by Congress in September 2006. (Although a number of cases had been brought under the earlier military commissions, all those cases were dismissed when the Supreme Court ruled that those commissions were unlawful.)

David Hicks, the only person to be convicted by the military commissions, pleaded guilty in April 2006 to one count of providing material support to terrorism, and has since then completed a nine-month sentence in his native Australia. By contrast, the federal courts have successfully prosecuted dozens of international terrorists since September 11, 2001.

“This is a historic trial,” Mariner said. “But if it is done badly, in these deeply flawed military commissions, it may turn out to be a historic failure.”

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