At Guantanamo, a Dubious Start to a Doubtful Trial

Saturday's arraignment at Guantanamo Bay for Khalid Sheik Mohammed and his alleged 9/11 co-conspirators highlights the perils of trying terror suspects via military tribunal.

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A sketch by courtroom artist Janet Hamlin of Khalid Sheikh Mohammed on Saturday. / AP

America must use military tribunals to prosecute terror suspects like Khalid Sheik Mohammed, we've been told by public officials for the past 10 years, because the trials would be safer and swifter than their civilian counterparts and because the defendants, "enemy combatants" all, are not deserving of the same substantive and procedural safeguards that American criminal defendants are guaranteed by the Bill of Rights.

It's the most important tribunal in American history since Nuremberg, and if this is how it begins I dread to think of how it will end.

Our regular civilian courts and procedures cannot be used for that function, we've been told by those same legal, political, and military functionaries, because then the trials of the suspected terrorists would drone on endlessly, permitting the defendants to use the public forum to spread their violent, anti-American messages while generating the possibility that one or more of the defendants would be acquitted by a civilian jury.

After the Bush-era tribunal proceedings were (over and over again) deemed unlawful by the United States Supreme Court, we were told that the trial procedures would be fixed to ensure that the defendants would receive more due-process rights: to look at the evidence against them, to communicate with counsel, etc. All of this was designed to make it more likely that tribunal convictions would be upheld on civilian appeal.

We've heard this rationale now for more than a decade, through two successive administrations, despite the fact that hundreds of terror suspects have been successfully prosecuted in federal court. Just last Tuesday, in fact, the so-called "subway bomber" was convicted by a federal jury in New York. Hundreds of other such suspects have been convicted in civilian court since the Twin Towers fell--and there have been no security breaches.

We've heard all this, and the American people have largely trusted what they've heard. On Saturday, however, at Camp Justice at Guantanamo Bay, Cuba, during an arraignment of five terror suspects that lasted 13 hours, it all came undone. The new commission rules may be different than before, but they appear to be no more effective in creating the sort of sober military-court trial that the United States would like the rest of the world to see.

Instead, the arraignment devolved at times into farce. The defendants acted like petulant children. The military judge acted like Lance Ito. The defense attorneys, finally given their opportunity to vent publicly about the restrictions placed upon their clients, made windy speeches instead of answering questions. It's the most important tribunal in American history since Nuremberg, and if this is how it begins I dread to think of how it will end.

Can this really be the government's aim? To conduct a proceeding that highlights the lack of respect the defendants have for the judicial process? To create a forum, finally, for the expressions of anger over the treatment the men received after they were captured? President Barack Obama refused to create a "Torture Commission" to get to the truth of our policies. Are we ready for this commission to take the place of that commission?

What's remarkable about Saturday's courtroom show is how internally discordant it was. Yes, all the participants were in the same room. And, yes, they were all theoretically invested in the same procedural endeavor. But no one, literally or figuratively, spoke the same language. So instead of doing straight analysis, I'd like to offer up three different narratives, three generalized perspectives, of the most bizarre arraignment any of us are likely to ever see again. It all depends upon your point of view, see?

The Man On The Street

The defendants received three prayer breaks? And the proceedings were at one point delayed by prayers from inside the courtroom? One of the men during the afternoon fashioned a paper airplane and positioned it on one of the microphones at the defense table? One of the defense lawyers, dressed in a Hijab, complained about a paralegal dressed in a skirt? There were outbursts from the men? Are you freakin' kidding me?

I'd like to know why my government is giving these terror detainees more respect and deference than regular criminal suspects receive when they are on trial. What do you think would happen, in our federal courts, if a 9/11 defendant fooled around with a paper airplane at counsel table? What do you think a judge would do in any case if a defendant suddenly got up from counsel table to kneel in prayer? It's outrageous.

Arraignments in civilian court take a matter of minutes. And our regular judges brook no nonsense from suspects. Now, I understand that military arraignments are a more complicated affair. But that doesn't excuse Military Judge Col. James L. Pohl for letting the defendants and their lawyers run all over him.* Torture or no torture, this trial of all trials must be handled with a firm hand. I didn't see that at all on Saturday.

I thought that these military tribunals were supposed to be more orderly than civilian court proceedings. I thought that these terror suspects were supposed to be more restrained in their ability to gum up the works. Didn't we just allow the defendants (and their lawyers) to put on a public PR show of the very sort that the military tribunal was designed to limit? Are we really stuck with this nonsense for two more years of trial?  

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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