As the U.S. moves toward the death-sentence trials of six suspected terrorists at Guantanamo Bay, Cuba, legal scholars and human rights advocates are raising questions not only about the process that led to the prosecutions but also about the Bush Administration’s motives in bringing the charges now and the credibility of the trials themselves.
The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together. If convicted, they would likely be executed at Guantanamo.
Before being shipped to Guantanamo, five of the defendants were held without charges or legal representation by the U.S. Central Intelligence Agency in secret prisons in Eastern Europe and elsewhere and reportedly subjected to torture.
The Bush Administration has acknowledged that at least one of the defendants, Mr. Mohammed, the reported “mastermind” of the September 11, 2001 attack on the World Trade Center and Pentagon, was subjected to “waterboarding” while in custody.
Waterboarding, a technique that simulates drowning, has been acknowledged as torture for hundreds of years. During World War Two, U.S. authorities prosecuted Japanese soldiers for using the practice against American prisoners of war. The newly-appointed U.S. Attorney General, Michael Mukasey, has declined to say whether waterboarding is torture.
Vice President Dick Cheney has vigorously defended the use of waterboarding and other harsh interrogation techniques, referring to them as “a tougher program for a very few tougher customers.”
Of the six men charged, Mr. Mohammed and four others were held for as long as three years in the secret C.I.A. prisons that were part of what the agency calls its “high-value terrorist interrogation program.” The prisons were established in 2002, but the administration did not publicly reveal their existence until 2006, when Mr. Mohammed and other detainees were moved from the C.I.A. facilities to the military prison in Guantánamo Bay, Cuba.
Military authorities have declared that no evidence obtained through torture will be used at the trials.
But many legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can convict the six without using evidence obtained through torture.
Horton also told us he believes the process used to establish the Military Commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
Horton is one of a large group of lawyers and legal scholars who are questioning the government’s motives and well as its timing in deciding to move ahead with the trials.
He added, “After being held for six years, there is a suspicion that the timing of trials is being ‘politically manipulated’ to coincide with the 2008 presidential election. He said he feared the result will be a case “bordering on a show trial."
This viewed is shared by Michael Ratner, president of the Center for Constitutional Rights (CCR), a New York-based legal advocacy group, which represents one of the defendants, Mohammad al Qahtani, who has been held at Guantanamo for six years and claims to have been tortured during that time.
Ratner told us that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
Many military lawyers have expressed similar views. For example, the head prosecutor at Guantánamo, Colonel Morris Davis, resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
And lifelong Republican John Hutson, a retired Judge Advocate General, has expressed increasing frustration with the Bush administration's treatment of detainees at Guantanamo Bay. Hutson has become a leading voice among former military officials opposing Bush policies on Guantanamo Bay and torture, worried about the precedent it would set for future conflicts.