On Saturday, Khalid Shaikh Mohammed (KSM) and four co-defendants charged with organizing 9/11 were arraigned.
To call it a "circus" is generous. In military-speak, it was a FUBAR--eFfed Up Beyond All Recognition.
KSM went through the same process, on basically the same charges, in the same courtroom four years ago. As retired Col. Morris Davis, the chief prosecutor for the military commission at Gitmo from 2005-2007, pointed out:
The fact that President Obama chooses now, six months before voters choose between him and Mitt Romney, to restart [this high-profile case], using a second-rate system of justice he had ordered stopped at a facility he had ordered closed, makes an unflattering statement about the . . . malleability of his principles.
But putting aside whatever this move might say about Obama and moral invertebracy, the kangaroo proceeding said plenty all on its own.
This "trial of the century" is supposed to show the world that military commissions are a bright and shining example of justice. But if the arraignment on Saturday of 5 of the most notorious terrorism suspects is any indication, military commissions are, once again, a big FAIL.
The judge, Army Col. James Pohl asked whether the Constitution applies to these proceedings, saying,
I think it's an open question.
As an attorney, that made me shudder. The Supreme Court has said at least 3 times that Gitmo is not a Constitutional-free zone. Even the Justice Department's first National Security Advisor, David Kris, testified that Gitmo detainees have due process rights.
The current chief prosecutor, Brig. Gen. Mark Martins, seems just as confused about the law:
The remedy for torture or cruel treatment, the things that will make you ashamed that were done, that are deplorable and disappointing, the remedy is not to just dismiss all the charges.
Survey says: ERR! Not exactly. The remedy is to have a suppression hearing to see if the tainted evidence is admitted. If it's not, then you may have to drop the charges. This has happened hundreds of times in regular (read: real) federal courts.
A critical part of the case is the defense's effort to present evidence of torture while in CIA custory--KSM was waterboarded 183 times in the first month after his capture--as mitigation against the death penalty. However, Martins characterized such complaints as
a bit misleading.
I don't know what's "misleading" about being waterboarded (which even AG Holder acknowledges is torture) an average of 6 times a day.
What was to be a two-hour arraignment took all day and late into the night. Of course, the mainstream media blames the defendants: "Several delayed the hearing by praying," the New York Times reports. Another "insisted that the full charges be read aloud, which lasted until the night."
ERR Wrong again. The defendants want what defendants in federal court are legally entitled to receive: the Judge reading aloud the charges against you in open court.
Even though Attorney General Holder and prosecutor Martins acknowledge that Article III federal courts are best suited for terrorism trials and have meted out swift, severe and successful justice in such trials--and in fact Holder originally planned to take the case to New York until Congress overruled him--the worst of the bad apparently deserve a show trial with a predetermined outcome in a sloppy-seconds court mired in confusion and arbitrariness.