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.
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.
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?
The best part of the bad day occurred at the very end, when two of the defendants asked to have the charges read aloud. Only then, with the litany of allegations spoken in court, did the hearing resemble the solemn affair it was meant to be. Only then were we all reminded that Mohammed, Binalshibh, and the others are charged with the biggest mass murder in U.S. history. And you know what? Prosecutors had asked to waive the reading of the charges. It was the terrorists who wanted the details out in the open.
The Civil Libertarian
What we saw Saturday was the inevitable result of a process that is now so flawed it can never be successfully resuscitated. And it has nothing to do with how the men behaved in court or with what religious privileges they were afforded during the course of the day. No criminal defendant is required to participate in his own defense. And every judge is or ought to be equipped to handle a case where a defendant ignores the court.
The defense attorneys were criticized by the judge for raising issues he believed were not properly before the court during an arraignment. Many of those issues, however, relate to the one fundamental requirement of a criminal trial--even a military tribunal--that the accused have access to his attorney to discuss the case. If you can't talk to your client in a capital case, you had better tell the judge every chance you get.
The Obama Administration has proclaimed that the rules now are fairer to defendants than they were in 2008, the last time Mohammed and Binalshibh were arraigned for these crimes. But some defense attorneys complained Sunday morning that some of the rules are in fact more onerous. That's not just unacceptable. It's counterproductive. And the sort of conduct that will generate another reversal by the Supreme Court.
It's strange to see defense attorneys questioning a sitting judge about his qualifications to serve on a case. And Judge Pohl sure got questioned aggressively about his fitness to preside here. Does it bother you that he never practiced law or presided over a civilian trial? Do you think that makes it more or less likely that the trial here will be conducted in a manner likely to generate a favorable decision upon appellate judicial review?
The flaw here is a fundamental one. Mohammed was tortured. And now the government wants to say that it will successfully convict him without resorting to any of the evidence that was obtained by torture. That is, as one defense attorney said Sunday morning, like "un-ringing a bell." The sad thing is that we have no one but ourselves to blame for this predicament. We're the ones who tortured these guys. And we're the ones today who continue to limit their ability to tell their lawyers about it.
The Administration Official
This is tough stuff, but we need to prosecute these men, once and for all. We tried to do so in federal civilian court, but you and your Congress rebelled. So now we are stuck in this venue and with these procedures. Yes, it was ugly yesterday. But the ugliness didn't come from the patient judge who tolerated hours of nonsense to try to complete the arraignment. Instead, it came from the defendants themselves. Punks, not monsters.
We know that many will criticize us for bending over backwards to respect the religious practices of the defendants. We think, though, that there is more to be gained than lost by continuing in this fashion. Let the world see that America is capable of respecting Islam to this extent. Let Al Qaeda see, too. Our court can handle the many extra hours it will take to give the men their prayers. After 10 years, we have all the time in the world.
We are not dealing with Nuremberg. We are not dealing with the former leaders of Western regime which, until it was perverted by the Nazis, boasted a respectable judicial system. We are instead dealing with men and with a global movement that sees our justice system as foreign and corrupt. We are never going to convince Mohammed to respect accept our legal procedures. But who cares? That's not our job.
Our job is to satisfy our own values and traditions. Our job is to process these men as best we can under the law and the facts of their respective cases. We've made that job measurably harder on ourselves in the way we have treated the men. But that doesn't mean we cannot fairly obtain the convictions we seek. We have enough confidence in our evidence, and in the process, to tolerate the defendants' impotent outbursts.
It is going to be a slog. And there will be more discouraging days like Saturday. But at the end we hope to oversee a trial that reasonable people will consider to be reasonably fair and thorough. We know it's too late to convince some Americans that these tribunals can ever be fair. We know that whatever we do here will be strictly reviewed by the federal courts and judged by the world. And we also know that many others are waiting to see how this trial goes before rendering their own verdict. Don't give up on this just yet.
* Editor's note: This post originally misidentified Judge Pohl's middle initial as "J." We regret the error.
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