Tuesday, November 17, 2009

Coming to America for Trial

Attorney General Eric Holder announced a little while ago that a number of inmates at Guantanamo Bay would be brought to federal court in New York City to stand trial. One of those that will be standing trial is Khalid Sheik Mohammed, accused of being the mastermind of the 9/11 attacks. Mohammed was captured in Pakistan by that country's authorities with aid by American forces. He was brought to Gitmo where he was tortured with waterboarding and a confession was extracted. Attempts were made to put him on trial in a military commission however, those proceedings weren’t able to move forward because of the Hamdan decision. Even though congress has since found a way around that, Mahammed’s case has not moved forward much until recently.

So I’m sure that many of you have heard the debate raging on whether we should be trying Gitmo detainees like Mohammed here in the US under a civilian court or in Gitmo with the military commissions. I am satisfied with arguments on both sides of the issue but I find myself falling on the side of the military commissions.

President Obama has indicated that he intends to use the military commissions that were started under the Bush administration, although with tweaks. It seems odd then that the DOJ (presumably with Obama blessings) has decided to try only some of the Gitmo detainees in federal court. So why only some and not all? It seems kinda shady right? My first thought was that this was going to be a naked show trial and done more for political posturing than carrying out justice.

The decision on who will be going to federal court and who will be going to military commissions is unclear to me. The best guess that I can come up with is that those that have been caught on the battlefield fighting against the military will be going to the military commissions. Those, like Mohammed that were caught in jurisdictions by other government authorities and then handed over to the America will go to federal court.

A couple of things that have been bothering me though have been that the administration is claiming that those going to federal court have extraordinary evidence is against them. In Mohammed’s case it’s been openly said that he is going to be found guilty. Even when questioned about the remote possibility that he would be acquitted, it has been said that Mohammed will not be let go. Why, then, even bother with a trial if 1.) he’s going to be found guilty, 2.) he’s admitted he’s guilty, 3.) he’s said he wants to die a martyr, and 4.) he’s never going to be released anyways? Sounds like and awful waste of time and money to me.

Also I question the legitimacy of the government’s pursuit of justice because it appears to me that if the government is sure that it has damning evidence, then they are comfortable with convictions in federal court? Yet, if the government doesn’t have the evidence, well… they’ll just go to military commissions where these people do not have the same rights and protections and the level of permissible evidence is lower with an allowance for hearsay or coerced testimony. It’s like if they can’t hit ‘em with the ping pong ball, they’re going to use the kickball. But going before a military commission is probably something that these detainees would rather go before since they have a lower conviction rate than the cases that go to court in the US.

My personal preference is to keep them at Gitmo, and go with military trials (not commissions) which has higher evidentiary requirements and the detainees retain more rights. I think that bringing some to the mainland for trial only muddies up the classifications of these detainees and opens back the questions of what kind of rights these people have.


Kapitano said...
This comment has been removed by the author.
Kapitano said...

It seems odd then that the DOJ (presumably with Obama blessings) has decided to try only some of the Gitmo detainees in federal court. So why only some and not all? It seems kinda shady right?

Just a bit, but not exactly surprising.

What if a suspect is put on trial in the US under relative public gaze, and their evidence reveals that some CIA operatives got overenthusiastic, torturing another prisoner's to death to get info - but it later turned out the prisoner was only there because of a mistaken identity, and the evidence of the mistake was available but lost in paperwork?

What if a prisoner can show one terrorist group was paid in guns and bombs for intelligence on a rival group?

What if someone knows the government was warned about plans for 9/11, but did nothing about them because they decided the source wasn't credible? Remember Hoover dismissed the 'tricycle' source about a planned bombing of Pearl Harbour, so that at least is concievable.

Sometimes secrets come out at trials, and the current government will want some secrets kept.

David said...

Well, I won't go into the conspiracy stuff, but I don't buy into the argument for those who are against moving the detainees to federal court for trial that secrets are going to be leaked. Okay, I do worry about that as there are plenty of cases to point to but that doesn't mean that keeping a lid on sensitive info at a federal court will be less secure as it would be at Gitmo. The rules for handling classified material in military courts is virtually copied from the federal courts.