The decision of Attorney General Eric Holder to try the key 9/11 suspects in federal courts in New York is "an enormous victory, and an enormous step toward restoring the rule of law," ACLU Executive Director of the ACLU said in a teleconference today.
He added "our criminal courts are fully equipped to provide full and fair justice" and "have regularly grappled with high profile crimes in the areas in which they were committed," and the best chance for a fair trial is by using our "tried and true justice system." Denny LeBoeuf, Director of the John Adams Project, added that it's critical that in moving forward with these cases, "full and seamless continuity of counsel" be strived for. The complexity of these cases, the fact that evidence has been obtained via torture and coerced evidence, the statements made in military courts by these defendants make the cases against the 9/11 suspects makes it particularly critical that they both be tried in the regular federal justice system and that the defense teams that have been working on these cases be allowed to continue with them.
The "enormous victory" in those cases is dampened by the decision to try other so-called "high-value" detainees in military commissions. While the Obama administration has made some improvements in the military commissions procedure, they do not meet the standard of "full and fair justice." Romero brought up several key problems with military commissions: the commissions allow for evidence obtained through hearsay; the commissions allow for coerced evidence--evidence obtained through torture; they allow for the prosecution of minors; and they allow for trial not just alleged perpetrators but those accused of providing material support.
One of the those detainees who will be subjected to a military commission is a suspect in the bombing the U.S.S. Cole, Abd al-Rahim al-Nashiri. His attorney, Nancy Hollander, was also on the call. She pointed out that his case was first investigated as a criminal case, and that he only reason to try him in a military commission is that they do not have the evidence to go to a legitimate court. In discussion the al-Nashiri case, Adam Serwer points out that while
the new military commissions are much closer to civilian trials than the Bush version . . . they still give the government the ability to more easily suppress information it wants to keep secret. That may explain why the administration doesn't want to try al-Nashiri in civilian court. Al-Nashiri, if you remember, aside from being waterboarded, had a gun held close to his head by an interrogator, and was led to believe that he would be rendered to a country where his female relatives would be raped in front of him. All of this is illegal under American law.
Unlike KSM, who has confessed--al-Nashiri maintains his innocence and has said confessions he gave previously were the result of torture, which means his treatment will likely be a big part of his trial. This may explain the choice of venue.
Human Rights Watch points to another critical case Holder wants to try by military commission (via e-mail):
The cases remaining before military commissions include that of Omar Khadr, a Canadian citizen who was 15 years old in 2002 when he allegedly threw the grenade that killed US Army Sgt. First Class Christopher Speer and wounded two others. The US government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.
No international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantanamo without giving due account of their status as children and concluded that the "conduct of criminal proceedings against children within the military justice system should be avoided."
The military commissions, while improved under the Obama administration, are still designed to result in a conviction, rather than to secure justice. If the complex cases of KSM and the other 9/11 suspects can be handled in federal courts, those of the other high value detainees should be as well. If the government has enough solid, reliable, admissible evidence to try them, then try them in civil courts. If not, prosecuting them in flawed system will not provide justice.
Update: Via Glenn, Former Air Force lawyer Morris Davis was the Chief Prosecutor of the Guantanamo Military Commissions system during the Bush years, who resigned because of his profound lack of belief in this flawed system writes:
In a preliminary report submitted to Mr. Obama in July, the Detention Policy Task Force recommended the approval of evaluation criteria developed by the Department of Defense and the Department of Justice. The task force stated its preference for trials in the federal courts, but added the decision would be based in part on "evidentiary issues" and "the extent to which the forum would permit a full presentation of the accused's wrongful conduct." A Washington Post editorial endorsed the proposal, arguing that there should be an alternative forum when a trial in federal court is "not an option because the evidence against the accused is strong but not admissible."
Stop and think about that for a moment. In effect, it means that the standard of justice for each detainee will depend in large part upon the government's assessment of how high the prosecution's evidence can jump and which evidentiary bar it can clear.
The evidence likely to clear the high bar gets gold medal justice: a traditional trial in our federal courts. The evidence unable to clear the federal court standard is forced to settle for a military commission trial, a specially created forum that has faltered repeatedly for more than seven years. That is a double standard I suspect we would condemn if it was applied to us. . . .
As Glenn points out, the message to the world, including the Muslim world that is sent, "that we have enough faith in our rules of justice to apply them equally to everyone, including to Muslim radicals accused of one of the worst crimes in American history," by trying the 9/11 suspects in our real courts is deeply muted by allowing the incredibly flawed military commissions to secure convictions.
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