Last week, the government announced that it does not want to try Khalid Shaikh Mohammed, and four of his colleagues, whom it claims are the remaining conspirators of the attacks of 9/11.
All five are awaiting trial at the U.S. Naval Base in Guantanamo Bay, Cuba. The allegations are that these five conspired to 'commit mass murder', a capital offense.
Even though conspiracy is not a war crime, the feds are planning to try these defendants before a military tribunal under the rules utilized in federal criminal trials.
All five were detained from around 2003 to 2006 at CIA black sites, where they were kept in solitary confinement and egregiously tortured. After the CIA torture was concluded, the five were transferred to military custody at Gitmo in 2006.
There, the tortures resumed until FBI agents arrived to interrogate them. For all of its faults in other cases, the FBI put a stop to the military torture and solitary confinement.
The decisions to have the CIA torture these detainees, not to charge them with capital offenses in federal district courts in the U.S. as the Constitution mandates, to implement military torture, to charge these folks with crimes not recognized under the laws of war before military tribunals, to scuttle the constitutionally mandated jury system, and to keep the Department of Justice out of these cases, were all made by the legally ignorant, Constitution-defying, President George W. Bush.
After 12 years of litigation and numerous changes in the prosecution teams and the judges hearing the case, as a result of Bush's profound incompetence, the feds are giving up on trying these men.
Here Is The Backstory
The guarantee of due process in the Bill of Rights protects persons, not just Americans. The only exception to this principle is for crimes against the laws of war. If the United States is at war with the government of a foreign country and its agents or troops harm American civilians, even then, basic due process applies, yet treaties to which the U.S. is a party permit military tribunals as the venue for the trials of war crimes.
If crimes are committed by foreign civilians against American civilians in America, the venue for the prosecution of the foreign civilians is the federal district court that is physically nearest to the scenes of the crimes. In the case of 9/11, that would be Manhattan for the World Trade Towers; Arlington, Virginia, for the Pentagon, and central Pennsylvania for the crash in Shanksville.
But Bush would have none of this. He must have been terrified that he'd be called to account for his failures on 9/11, hence his belligerence in Afghanistan and Iraq, his orders for criminal torture and his firm determination that the 9/11 detainees not get fair jury trials, but rather military tribunals, where, to his primitive way of thinking, the detainees were more likely to be convicted quickly, and sentenced to die.
Last week, the military judge presiding over these cases - "the only cases at Gitmo involving 9/11" - adjourned all pre-trial hearings and the trial date pending plea negotiations. The government, which seeks the death penalty and has not yet publicly shown its hand, claims that the evidence of the guilt of these defendants is overwhelming.
If the government's claims are truthful, then why the adjournment for plea negotiations?
Enter Majid Khan. Khan is a Pakistani-born and American-raised young man who was tortured by the CIA for three years and then brought to Gitmo. The charge against him was delivery of cash to colleagues in Indonesia who used the money to destroy a hotel in Jakarta at which some Americans were killed. Rather than contest the charges against him, Khan pleaded guilty.
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