Get Ready for the Appeals: US Charges Gitmo 6 with 9/11 Attack
It happened: Six Gitmo detainees accused of "central roles" in 9/11 have been charged with conspiracy and murder "in violation of the law of war." [A law we're sure has some little tidbit about rules of torture, right?] The Pentagon announced that military prosecutors will be seeking the death penalty as Death By Waterboarding just isn't getting the popular acclaim they hoped.
Brig. Gen. Thomas Hartmann, legal advisor to the DOD, said that it will be up to the trial judge how to handle evidence obtained through controversial interrogation techniques like “waterboarding,” or simulated drowning, the NYT reports.
So if there's a legally *interesting* road ahead, why go down it? Analysis from Cab Drollery:
The case could begin to fulfill a longtime goal of the Bush administration: establishing culpability for the terrorist attacks of 2001. It could also help the administration make its case that some detainees at Guantánamo, where 275 men remain, would pose a threat if they are not held at Guantánamo or elsewhere. Officials have long said that a half-dozen men held at Guantánamo played essential roles in the plot directed by Mr. Mohammed, from would-be hijackers to financiers. [Emphasis added]
Of course, such a conviction would lift the burden from the White House of the total dismissal of the August 6, 2001 PDB which warned of such an attack. Also, of course, the White House hopes that such a conviction will cause people to forget the fact that after the last terrorist attack on the World Trade Center the previous administration treated the whole matter as a crime, and stayed within the boundaries of Constitutional guarantees in prosecuting and convicting those who committed that crime.
And therein lies the rub. I'd like to say that the jury is out on whether the Bush White House will succeed, but that trope is totally out of place in this situation. There will be no jury. In fact, there will be none of the traditional guarantees of due process in place: no right to confront witnesses, no right to challenge evidence, no right to even see the evidence being used by the prosecution. This of course does provide some fodder for an appeal, as this AP article published this morning indicates.
More from Tom Lifso:
I would add that fighting a global religious movement lacking state status probably requires a brand new category of detainee who would lack the protections of prisoners of war, not to mention constitutional guarantees. My argument is that an inferior status is merited by the danger of stateless fanatics, unconstrained by a state’s need to deal with other states on a reciprocal basis. This asymmetric warfare paradigm requires new procedures for states, which are accustomed to fighting one another.
NB: Osama's still not on the list. Why? A little evidentiary scuff. Like, they've got nothing on him. But don't worry. One of the guys they'll hang up for this knows him. They're buddies. Close enough, right?
We're counting down the days to appeals.
UPDATE: Here is Dana Perino discussing the charges in today's press briefing.
Dana Perino, 9/11, pentagon, charges, Guantanamo Bay, conspiracy, Cab Drollery, Tom Lifso
You might take a look at
http://counterterrorismblog.org/2006/12/if_it_worked_for_al_capone_it.php
in re: Lifson's comment. I don't think that the entirety of the linked post is correct for reasons other than those at hand, but it does provide a decent example of an alternative manner of looking at these cases. I suppose my concern is that, judging from what I read of the Times article and the rest of this (sordid) 'history' as Ms. Perino called it, we've seen actions directed specifically against the power of the American state and the perpetrators were dealt with accordingly and constitutionally. I would whole-heartedly disagree with the notion that the DOD (a single, hostile governmental entity) bringing the charges, prosecuting, and judging those same charges in any way conforms to the idea that one cannot judge one's own trial, which seems to me a fundamental rule of law.
Furthermore, just because these men do not have a state backing them, does not deprive them of the fundamental right of a just court ("[it] is not the liberty of particular men, but the liberty of the Commonwealth: which is the same with that which every man then should have, if there were no civil laws nor Commonwealth at all" --Hobbes), nor articles, specifically, two, ten, and eleven of the Universal Declaration of Human Rights (though not necessarily binding, the ICCPR is, given (I would think, c.f., non self-executing reservation) that the DOD has abdicated its responsibilities under domestic law, which would include the rights indicated by Article 14 (e) & (g) - and which I would suppose to be violated - by being tortured after all - in the case of "Not to be compelled...to confess guilt" - and as the United States did not raise specific objections to those subparagraphs, we must be bound by them all the more surely).
Forgive the extended parenthetical.
Good addition - but I'm glad it's there in the first place. what I like about this blog is that they actually give a round opinion - and I like to know what's going on in the other blogs without having to read all of them. As much as it's usually swung to the left over here, it's nice to know things balance out sometimes. Gets the conversation going, you know?