Failing a legal standard
The following editorial appeared Tuesday in the Miami Herald.
The proposed death penalty is not the problem with the latest charges filed against six Guantanamo terrorism suspects. If anyone merits the ultimate penalty, it is those legitimately convicted of plotting the Sept. 11 terrorist attacks that killed almost 3,000 people.
The real question is whether these men can receive a fair public trial that satisfies U.S. legal standards and global scrutiny. The established commission process seems to make that unlikely. That at least two of the suspects may have been tortured in U.S. custody makes matters worse.
As it is, the military commission system fails to meet basic standards of fairness. It allows evidence obtained by coercion, hearsay testimony and secret proceedings. One former chief prosecutor resigned, saying that “full, fair and open trials were not possible” under the existing system.
The commissions do guarantee each defendant a military lawyer. That’s good in theory. On Monday, however, seven of the military’s eight defense attorneys already were in trials. The eighth was starting his first day on the job. Federal public defenders, moreover, are not allowed to represent Guantanamo captives. How well the six men with Sept. 11 charges will be defended remains an open question.
The best known among them is Khalid Sheik Mohammed, the alleged mastermind. He was a “high-value detainee” kept in a secret CIA prison overseas until transferred to Guantanamo in 2006. Last week, the CIA confirmed that he was subjected to waterboarding, a form of controlled drowning that can cause death if not stopped and a technique long condemned as torture.
Also charged was Mohammed al-Qahtani, who some believe was the 20th hijacker. Held at Guantanamo almost six years, he was subjected to a variety of “aggressive interrogation methods” that included sleep deprivation, isolation, sexual humiliation, threats to his mother and intimidation by dogs.
Messrs. Mohammed and al-Qahtani may well be murderous terrorists bent on destroying this country. But how can truth be sorted from their admissions when people will confess to anything under torture?
To try high-profile suspects under questionable rules with suspect evidence invites more legal challenges and international scorn. Unless their trial is scrupulously fair, convictions and the death penalty would increase the international outrage.
The last thing this country needs is to help terrorists become sympathetic martyrs.