October 24th, 2012
11:47 AM ET

Why take the risk at Guantanamo?

By Laura Pitter, Special to CNN

Editor’s note: Laura Pitter is the counterterrorism advisor at Human Rights Watch. The views expressed are her own.

“Do I have authority to do that, counsel?” military judge U.S. Army Col. James Pohl asked frequently while presiding over the 9/11 case at Guantanamo Bay earlier this month. “I get a lot of cites to authority all over the board. One day it is DC Circuit, next day it is court martial practice,” he said at one point, seemingly exasperated.

The exasperation was not surprising given what is at stake. Pohl was handling the most important terrorism case of our time and the breadth, novelty and complexity of the issues seemed daunting. Even Military Commission Chief Prosecutor Mark Martins admitted “the case raises challenges for our government and our legal system that are unprecedented.”

The ambiguous authority is not surprising given the scant trial record of the post 9/11 military commissions, which have been refashioned in various forms since 2004. Court rules and procedures are still being tested and frequently revised.  But on day two of the hearings the implications of this became abundantly clear. Over lunch recess, news arrived that one of only two cases tried to a verdict by these commissions, United States v. Hamdan, had just been overturned. This sent shockwaves through the court viewing gallery where many longtime commission-watchers were seated. A three-judge panel of the conservative DC Circuit found that the charge for which Hamdan was convicted, “material support for terrorism,” was not a war crime, and thus outside the reach of the commissions.

For Hamdan, Osama bin Laden’s driver, the meaning was clear: he could no longer be labeled a convicted war criminal. But for the military commission system, the meaning was broader: Given the numerous untested issues being raised, was trying the 9/11 defendants at Guantanamo really worth the risk a verdict would end up like Hamdan’s? When federal courts provide a time-tested, readily available alternative – the answer most definitely is no.

Principle aside, there are a plethora of logistical and practical problems involved with holding trials on this remote island. Unlike in federal court, where attorneys can walk down the street or drive to client visits, defense lawyers are reportedly flown down on government chartered flights. During hearings; prosecutors; support staff; victim family members; and independent observers are flown down too. Though the newly built, modern courtroom the public can see on closed circuit television from Fort Meade military base is pristine, with flat screen TVs and sophisticated communications technology, much of the rest of the complex, called “Camp Justice,” by the government, is made up of makeshift tents and trailers. One of the 30 or so motions before the court asked the government to clean up the rat feces, urine and mold in defense attorney work space.

As attorneys litigated the strict secrecy rules and communications restrictions defense attorneys say make adequately representing their clients near impossible, Khalid Sheikh Mohammed (known as KSM), sat quietly stroking his hennaed beard. He is one of five defendants in the case and alleged mastermind of 9/11. It was the same day the American Civil Liberties Union and 14 news organizations had finished arguing that the First Amendment barred use of a 40 second delay and “censorship button,” newly created for the Guantanamo court, to block public airing of defendant’s “observations and experiences” during years in secret CIA custody.

Later in the day, KSM said he wanted to speak. The comment threw the court into a frenzy: All proceedings are aired to the public on a 40 second delay, but should he be allowed to speak? If so, should the court censorship button be used? Should the courtroom be closed to the media and public? No one seemed to have a clear answer so a recess was called. When they returned, KSM was allowed to speak. He took the opportunity to give a brief lecture on, among other things, U.S. hypocrisy and overabundance of the use of force. He did not talk about his years in CIA custody and nothing was censored but the judge warned it was a one-time deal. He would not again “entertain personal comments of any accused about the way things are going.” Yet during the exchange, I couldn’t help but wonder –did KSM derive some sort of satisfaction over all this fuss?

In federal court, a defendant speaking in such fashion would probably be just a blip on the radar of the regular court proceedings. Attorneys would quickly get back to the task at hand. Yet here in Guantanamo, with so much focus on new rules and procedures set up for the commissions and use of things like a censorship button, actual justice is not making much progress. This past week was just preliminary hearings and most involved in the case acknowledge an actual trial is still years away.

The attacks of 9/11 were a great tragedy for all Americans and without doubt a crime that must be prosecuted. But it’s disturbing to watch that horrific crime so dramatically change the U.S. system of justice – a source of pride for so many Americans. It’s more disturbing given that it’s not necessary or prudent. Federal courts have completed hundreds of terrorism cases since 9/11, while the commissions have dispensed with a mere seven. With the Hamdan reversal and so many practical and legal problems on display, the executive and Congress need a reality check. Given the importance of the 9/11 cases for the victims, the U.S., and the rest of the world, is trying them before military commissions at Guantanamo really worth the risk?

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Topics: Terrorism • United States

soundoff (18 Responses)
  1. bushsfault

    Uh, ummm, uh....Mitt Romney has money! Paul Ryan lied about some marathon! Hope 2012!!!

    October 24, 2012 at 2:56 pm | Reply
  2. j. von hettlingen

    Obama had been talking about closing the Guantanamo prison, another remnant of the Bush-administration. Yet he hasn't been able to translate words into action. He was right when he said, that Guantanamo "has damaged our national security interests and become a tremendous recruiting tool for al-Qaeda".

    October 25, 2012 at 6:40 am | Reply
  3. george thorn

    It seems to me that Al Qeada is a CRIMINAL organization and treating it as a war actor gives it a legitimacy way beyond its reality. As criminal defendants the accused should be tried in federal court. 911 had nothing to do with sate on state war. As to our base on Guantanamo, Cuba, it should be closed and turned over to the Cubans. Furthermore, relations with Cuba should be as normalized as our relations with China.

    October 25, 2012 at 9:19 am | Reply
    • Ken

      I totally agree with everything George said! This is just common sense, I believe.

      October 26, 2012 at 8:41 pm | Reply
  4. ronvan

    Lets not forget that this subject was brought up month ago, and the results? NO ONE wanted these animals locked up in thier city or state!! They even proposed building a hi tech prison, forget the state, out in the middle of nowhere. The answer was NO! Trial held in NYC? NO WAY!! Sooooo, what to do? YES, GITMO has done some, many things, that got them into trouble! HOWEVER, I do not understand WHY a civilian defense attorney is even involved? This is a military court, done by military judges and lawyers, on a WAR criminal! I think, what really amazes me, is that we FEEL, this animal even deserves a trial! He did not care who was killed in 9/11 or what kind of damage it caused, just to KILL, and if he could have done more, and killed more, he would have!

    October 25, 2012 at 12:07 pm | Reply
    • george thorn

      it was a CRIMINAL act, not an act of WAR.

      October 25, 2012 at 6:38 pm | Reply
    • Sandy233

      Americans want Gitmo so it should stay. The war criminals should stay locked up until the war on Islamic terrorism is over (which it never will be in our life times).

      October 26, 2012 at 11:16 am | Reply
    • Brian

      I guess you guys don't really believe in American ideals. The Founding Fathers would be disgusted with you animals.

      October 26, 2012 at 11:47 am | Reply
    • lweba

      Is this a trial or a 'judicial circus'? All the measures being taken its no wonder this fellow might be found technically innocent.

      October 29, 2012 at 2:01 pm | Reply
  5. rightospeak

    There is no excuse for Guantanamo-any moral authority that the U.S. had were lost. While Bush and Cheney commited WAR CRIMES and they orchestrated 9/11 to justify endless wars with the Muslim World-they need to be tried for treason.Unless Obama does what he said he was going to do -close Guantanamo and stop endless wars he will lose support. He can fool some people some of the time ,but not all people all the time.The American people have been lied to for too long.

    October 25, 2012 at 6:30 pm | Reply
    • wagnertinatlanta

      Where people like you are concerned, the only moral authority the United States is allowed to exercise is to let people like Kahlid Sheikh Mohammed go, with apologies for inconveniencing them in the proper exercise of their religion. Where people like me are concerned, I don't have the slightest concern with what you are concerned with.

      October 29, 2012 at 7:41 pm | Reply
  6. Rob

    Obama 2012 – Romney 1040

    October 25, 2012 at 11:10 pm | Reply
  7. infidel86

    My platoon downrange solved this problem for you. We didnt take any prisoners. We treated them like we would get treated! Problem solved!

    October 29, 2012 at 1:56 am | Reply
  8. Duplicacion de CDs

    Gracias por el contenido. Yo he encargado copias de DVD en Duplicacion Robotizada y me salieron excelentes. Por suerte no se trataba de copias truchas realizadas con computadoras e impresoras comunes de deplorable calidad.

    November 7, 2012 at 3:48 pm | Reply
  9. USN Ret.

    Why are people "Lawyers" saying that any of these killers deserve the protection of OUR Construction? Did they do something to deserve that protection? Did they express any concern and guilt for their part on killing people that were not on the battlefield? Have they expressed any remorse for leaving over 3,000 families with out a farther, mother, son or daughter? When they become American’s and pledges to protect OUR laws and freedoms then and only then do they rate protection under our laws. The media and anti war, anti U.S. and anti west would make you think these men are just caught up in a net and are being treated badly, if treated badly is not being able to kill more people who do not agree with you views then treat them badly please.

    November 27, 2012 at 11:48 am | Reply
  10. USN Ret.

    Maybe 1 in 10 are not guilty but remember they all for the most part were caught fighting and killing uniformed troops at the very least. When not wearing a uniform the international laws of war allows them to be detained and executed as spies. Read up on the Rules of War on the subject. This is no different the band on cluster bomb that is now part of those rules.

    November 27, 2012 at 11:58 am | Reply
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    December 31, 2012 at 3:59 am | Reply

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