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Military Judge: ‘Open Question’ Whether Constitution Applies to 9/11 Terror Suspects

Guantanamo Bay prison (photo: US Army)

(update below)

Five individuals accused of being involved in the September 11th attacks were arraigned and formally charged by a military commission at Guantanamo Bay over the weekend. Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam Al-Hawsawi, as required by the Constitution and the Military Commissions Act, were brought before a military judge.

What is typically routine process turned into a twelve hour farce, which is not surprising. Those executing these proceedings are some extent making it up as they go along. Hundreds of terror suspects have been tried in federal courts. The same cannot be said for military commissions. These supposedly reformed tribunals are an attempt to give some semblance of due process to terror suspects without granting foreign individuals access to the civilian US justice system.

Jesselyn Radack of the Government Accountability Project called the arraignment a “kangaroo proceeding” that was “FUBAR.” For example, here was one key exchange that occurred between the lawyer for Binalshibh and the military judge, Col. James Pohl:

DC [MR. HARRINGTON]: Just a few follow-up questions regarding constitutional challenges. General Martins has spoken many times about the comparison of these commissions to Article III courts, but he does what I call the “Martins Shuffle” where he refuses to go up and say that constitutional rights apply to this court. And you indicated before that a challenge to this entire Commission would be something that you could consider, and my question to you is: Do you believe or accept that the rights under the United States Constitution, the individual rights, apply in these proceedings?

MJ [COL POHL]: Mr. Harrington, clearly the U.S. Constitution applies to limitations on Congress. Except for the suspension of the Habeas Corpus Clause, I have been presented no case where an individual constitutional right applies to an accused so situated. Now, that may be because most of the action’s been in the habeas arena that’s gone up through various appeals.

So to answer your question, I think it’s an open question, and I’m — and I’m subject to be persuaded either way with assistance of counsel’s briefs.

It is not really an “open question.” The Supreme Court recognized in Boumediene v. Bush that Guantanamo detainees have constitutional rights.

The answer is important because Harrington and other attorneys for the 9/11 terror suspects might be preparing to challenge the military commission process itself. During the arraignment, Pohl was asked if he swore an oath to the Constitution could he preside over a process that was unconstitutional. It is also important because it implies what many know: the process is not fair (no matter how much it has been reformed).

As Amnesty International wrote in March 2011,  they are discriminatory:

…If any Guantanamo detainee slated for prosecution, including those accused of involvement in the 9/11 attacks, was a US national, he could not be tried by military commission under the Military Commissions Act. He would face trial in an ordinary federal court “before an impartial jury under long-established rules and procedures,” not before a panel of US military officers operating under less stringent and essentially untested rules and procedures. The same standard of fair trial should be applied to all, regardless of national origin: that is a fundamental principle of human rights and the rule of law. Using ordinary criminal courts would address this concern…

Lawyers also cannot discuss torture with their clients:

DC [MR HARRINGTON]: …we are litigating under orders that prohibit us from discussing torture with our clients and prohibit us from discussing perspectives, historical perspectives, or jihadist activities, among other examples…

Harrington made this clear when asking the military judge whether he would consider evidence of torture in mitigation or sentencing. Pohl was mostly apathetic. Earlier in the arraignment, he had deferred a motion the ACLU submitted to prevent the censoring of torture testimony.

ACLU director Anthony Romero, who has been observing proceedings at Guantanamo since 2004, notes censorship occurred at the arraignment. The word “torture” was uttered, censors cut the audio feed, which is “on a 40-second delay to courtroom observers behind soundproof glass.” Romero also mentions talk of US military personnel that tortured their clients is considered “information contraband” and defense attorneys are prohibited from discussing torture.

There are multiple aspects in the military commission system that have been established and make it effectively impossible for defense attorneys—no access to translators, rules allowing coerced or hearsay evidence, defense only given summaries of classified information and basic tenets of attorney-client privilege denied to defendants. The possibility of censorship of torture testimony and the reality that torture evidence could be inadmissible in court during mitigation or sentencing is one of the more egregious aspects of the process.

David Nevin, lawyer for Mohammed, says the government wants to execute Mohammed so they can “extinguish the last eyewitness so he can never talk about his torture. They want the political cover.” This would be baseless hysteria had any government official been brought to justice for torture. But, since no person has, there is merit to what Nevin suggests. If President Barack Obama had not been a political coward and ceded the narrative of terrorism to the GOP, it would not seem like this process was simply one rigged to suppress evidence of torture and keep the world from learning more details about how detainees were treated.

In any case, the trial of 9/11 terror suspects putters on, marred by fact that this is all just supposed to appear fair and never be a fair process for suspects at all.


A reader (@johnmarkhenry) calls my attention to this tweet, which is particularly relevant to points raised in this post and comes from the exceptional journalist Carol Rosenberg:

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."