But the Bush Administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top terrorists.
A spokesman for the Pentagon, Air Force Brig. Gen. Thomas W. Hartmann, a Defense Department legal adviser, said the trials will be "as open as possible,", and the accused will have the right to call their own witnesses, cross-examine prosecution witnesses and see the evidence presented against them.
"There will be no secret trials," he said. He added that the defendants will be tried by a 12-member military commission, which must reach a unanimous verdict. A decision to impose a capital sentence also must be unanimous, he said.
But Hartmann declined to answer questions about the admissibility of evidence obtained by waterboarding, which the CIA has acknowledged using to extract information from one of those now being charged.
The procedures of the military commissions have been repeatedly challenged in U.S. civilian courts, resulting in a number of stinging defeats for the Bush Administration and contributing to the delays in beginning prosecutions.
The legal saga began in 2001, when President Bush issued an executive order establishing military commissions to try those captured in the “War on Terror.” But in 2004, a federal judge ruled that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a commission established by an executive order. Only an act of congress, the court suggested, could be legal.
So in December 2005, a Republican-controlled congress passed the Detainee Treatment Act of 2005 (DTA). It stripped U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees challenging the reason for their detention and vested exclusive review of final decisions of military commissions in a single circuit court.
A year later, an appeals court overturned the Hamdan decision. And a year after that, the Supreme Court reversed the appeals court decision. The High Court ruled that military commissions, as defined under the President’s executive order, violated military law and the Geneva Conventions.
Congress then hurriedly enacted the Military Commissions Act of 2005, which President Bush signed into law in early 2006. That law, which is still under challenge in the courts, became the basis of the current prosecutions.
The forthcoming trials have also generated considerable interest abroad. For example, the influential British newspaper, The Independent, wrote last month, “The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.”
Concern about the credibility of the U.S. has also been voiced by many American legal scholars.
David Cole, one of America’s preeminent constitutional authorities, told us, “For better or worse, the U.S. is a world leader on matters of human rights. When the US violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”
This view was echoed by the CCR’s Ratner, who told us, “These trials are important because the U.S., a country that often criticizes torture and military tribunals in other countries such as Nigeria and Turkey is now using torture and trials outside its normal system to try alleged 9/11 conspirators.”
And Rona Gabor, International Legal Director for advocacy group Human Rights First, told us, “Much of the world considers the death penalty an international human rights violation even when imposed after the fairest of procedures. To impose it through an untested, ad hoc process that has not yet successfully completed a trial even for a misdemeanor will likely be viewed with deep skepticism.”
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