NEW YORK -- By now, we know that the alleged ‘masterminds’ of 9/11 will be going on trial in lower Manhattan, a few blocks away from where their most serious crime - the destruction of the World Trade Center towers - took place.

Oddly enough, the notion of trying these men at last is getting only lukewarm praise from Democrats, and downright hostility from Republicans.  But the option, at least in part based on a 2008 decision by the Supreme Court, striking down key provisions of the 2006 Military Commissions Act, would have been to leave these prisoners in prison indefinitely.  When Guantánamo closes sometime next year, and the remaining prisoners are moved to the United States, that will cease to be an option, either.

How did it come to this?  To understand why we are at this pass, we first have to examine a timeline of what the previous administration believed it could do in light of treaty obligations to which the U.S. was already signatory, especially the Geneva Conventions, the UN convention against torture, and US statutes placed into law in 1994.

2002

In 2002, President George Bush asked the Office of Legal Council (OLC) to review treaties and statutes that prohibit torture, so that the CIA could use ‘enhanced interrogation techniques’ - including waterboarding and other practices that were questionable - on a particular detainee, Abu Zubaydah, who was captured and was incarcerated at Guantánamo .  

The OLC’s ‘torture memos’ allowed ten enhanced technques to be used on Zubaydah, while suggesting that nothing in the U.S. own statutes or in international law forbade such treatment.  Three years later, the UN vehemently disagreed.

At first, Zubaydah was not tortured.  Instead, he was treated well, and was cooperating somewhat with the FBI, giving up actionable intelligence.

However, soon enough, the CIA took charge and subjected Zubaydah to various interrogation techniques known at the time to be considered torture by the United Nations, including sleep deprivation, enforced nudity, subjection to extremes of heat and cold, exposure to dangerous animals, and waterboarding, or simulated drowning. Zubaydah was waterboarded a total of 83 times.

The torture of Abu Zubaydah was only possible because on February 7, 2002, Bush signed an executive order denying Taliban and al Qaeda detainees protections afforded by the Geneva Conventions, saying that the United States needed ‘new thinking in the law of war’.  Article 3 of the Geneva Conventions prohibits ‘cruel treatment and torture’ and the ‘humiliating and degrading treatment’ of detainees.

In August, In another memo to White House counsel Alberto Gonzales, largely written by John Yoo of the OLC and commonly called the ‘Bybee Memo,’ the OLC concluded that only acts which result in pain equivalent to ‘organ failure, impairment of bodily function, or even death,’ constitute torture; all lesser abuse is legal. Yale Law School Dean Harold Koh called it ‘perhaps the most clearly erroneous legal opinion I have ever read.’

2003

In 2003, Khalid Sheik Mohammed was captured in March.  He was subsequently waterboarded 183 times in a single month.

Also that month, Yoo sent William Haynes, counsel to the Department of Defense, a memo working through the applicability of international and national law to detainee treatment. It cites the prerogative of national ‘self-defense’ and the executive power of the president as paramount.

The United States invaded Iraq on March 20.

In June, the 9/11 Commission requested all information about the treatment and interrogation of Zubaydah, but was only provided with brief summaries.

In October, the Red Cross raised serious red flags about the detainees’ treatment and health, and demanded that they receive due process.  Their concerns were ignored.

2004

At the end of April and throughout much of the month of May, new details about Abu Ghraib prison in Iraq were coming out.  In June, news of the torture memos were made public by Dana Priest of the Washington Post. OLC head Jack Goldsmith withdrew the August 2002 Bybee torture memo to Gonzales, and subsequently resigned. 

Later in June, the Supreme Court ruled in Rasul v. Bush and Hamdi v. Rumsfeld, that Guantánamo Bay detainees have the legal right to challenge their detention.

In December, the new acting head of the OLC sent a new memo, declaring torture ‘abhorrant’ and ‘illegal’, superseding the 2002 memo in its entirety.

2005

However, by May, the OLC was up to its old tricks.  Steven Bradbury sent a detailed, 46-page memo to John Rizzo, the CIA counsel, authorizing activities now regarded as torture.  He wrote, ‘As you have informed us, the CIA has previously used the waterboard repeatedly on two detainees, and, as far as can be determined, these detainees did not experience physical pain or, in the professional judgment of doctors, is there any medical reason to believe they would have done so.’ 

A third memo again attempted to work through the legality of enhanced techniques.  Phillip Zelikow, then an adviser to the Secretary of State, repudiated the memo, and the Bush White House attempted to collect and destroy all copies. They did not succeed.

In November, Dana Priest exposed the existence of so-called ‘black site prisons’.  Some time that month, the CIA destroyed the videotapes of its enhanced interrogations of some 28 subjects, including Zubaydah.

In December, Congress passed the Detainee Treatment Act, which outlawed ‘cruel, inhumane, or degrading’ treatment of U.S.-held prisoners anywhere in the world. Members of Congress were at that time unaware of OLC memos categorizing harsh techniques, including waterboarding, as legal.

2006

Congress passed the Military Commissions Act (MCA), to provide a venue to try prisoners at Guantánamo and the black site prisons.  The Act's stated purpose was ‘To authorize trial by military commission for violations of the law of war, and for other purposes.’ However, Section 7 of the Act, which suspended habeas corpus for prisoners, soon proved problematic for the administration.  

2007

In June, ruling on Hamdan v. Rumsfeld, the Supreme Court determined that the United States must comply with the Geneva Conventions in its treatment of Guantánamo detainees.

In July, Bush thwarted congressional efforts to restrict CIA interrogation techniques to those authorized for the military and signed an executive order allowing the CIA to use harsher methods.

2008

Deciding Boumediene v. Bush and Al Odah v. United States, the Supreme Court determined that Guantánamo detainees should be able to file habeas corpus petitions in federal court, thus invalidating the most important part of the MCA.

2009

As his first act in office, President Barack Obama signed executive orders closing the detention camp at Guantánamo Bay, Cuba, within a year; ending the Central Intelligence Agency’s secret prisons; and requiring all interrogations to follow the noncoercive methods of the Army Field Manual.  

In April, Obama released torture memos, and later that month said he would not seek prosecution of those engaged in the practice, but would leave the final decision up to Attorney General Eric Holder.

In November, Eric Holder stated that he would try the cases of Khalid Sheik Mohammed and others involved in the 9/11 plot in New York City.

What were the other options?

The United States had options when it first took custody of these suspects that it does not currently have.  The first option was to treat them as prisoners of war under the Geneva Conventions and hold them in approved POW camps until the end of hostilities.  However, as soon as they were declared illegal combatants, this process could not be used.

The second was to seek to have them declared alleged war criminals and place them in the custody of the International Criminal Court in The Hague, Netherlands. The ICC is the first permanent global court set up to try individuals for genocide, crimes against humanity and war crimes when national courts are unable or unwilling to do so.  However, out of concern that U.S. service members or contractors would be prosecuted under the ICC, the U.S. has not ratified the current treaty.

The third option, the military tribunal option, may still be used for some cases. Obama suspended military tribunals in January, but reinstated them in May for certain accused prisoners.  The rules, however, will change before anyone else is proscuted this way.  New rules include: 

•  Restrictions on hearsay evidence that can be used in court against the detainees.

•  A ban on all evidence obtained through cruel, inhuman or degrading treatment. This would include statements given from detainees who were subjected to waterboarding.

•  Giving detainees greater leeway in choosing their own military counsel.

•  Protecting detainees who refuse to testify from legal sanctions or other court prejudices.

Instead of prosecuting some 240 detainees this way, the current number appears to be fewer than 20.  But even that is in doubt, since all of the detainees and some of their military lawyers are boycotting the process, which will cause their cases to be reviewed by the Supreme Court.

Clearly, in the case of significant detainees, the military commission process is fraught with uncertainty.  Many detainees have been mistreated at Guantánamo, and for some, the only evidence against them comes from coerced confession.  In other cases, hearsay is the only evidence against them.  A fair tribunal for such persons would result in an acquittal.  

So, many are not being tried at all, but are being repatriated or sent to third countries willing to accept them.  

While detainees who were swept up in raids during military operations may be repatriated, or can be legitimately released following an acquittal, others clearly remain a danger.  In those cases, a civilian trial, as is planned for Khalid Sheik Mohammed and his fellow conspirators, may in fact be the best option.

Why New York?

The crimes took place in three jurisdictions; four if one includes Boston, where some of the planes took off.  Mohammed and his co-defendents will have the protections of the U.S. Constitution, which provides that the trial take place in the state in which the crime was committed.  Choosing New York over Pennsylvania, or northern Virginia, or Boston, was largely a symbolic action.  Family and friends of the fallen will be able to attend the trial if they choose; witnesses can be called without undue burden.  But for the most part, the trial should bring some closure to a horrific event that has yet to heal in American society.

It will be even messier.  These prisoners have been systematically denied their right to a speedy trial, they have been repeatedly and sadistically tortured.  The denials of these basic human rights will make a mockery of any subsequent proceedings.  Will testimony elicited under torture be allowed in a US court?  What precedents will be set to allow/condone such behavior in the future if the trials are not immediately settled due to the US gov't./military abuse of the prisoners?

Nov 16, 2009 -- 3:52PM, ZafodB wrote:

 

 

SIS

 

Thre is a very relevant question here. Since ,for the past 4 or 5 years ,the left screamed about upholding the Constitution,will That be applied to KSM NOW!!

By that I mean ,we know that he was NOT mirandized whne he was picked up. Now there are some exclusions for miranda when it comes to National Security BUT...When Ksm was picked up he was already under indictment,in New York,which puts him in a unique position. I believe that this indictment qualifies him(KSM) for immediate Miranda. If this is so do you think the left should call for upholding the Constitution and order him released????

 

Zafod,

What do you suppose would happen to him if he were to be released, a free man, into lower Manhattan?

My guess is that any acquittal would leave him crying for protective custody, but I could be wrong ...

Nov 16, 2009 -- 4:15PM, geologist wrote:

The truth is these prisoners are foreign terrorists who deserve no rights and have been treated much more humanely than they deserve to be.  The trials will be a mockery because they are uncalled for and only demonstrate how weak and insane our government is.   The proper and humane thing to do is give them a quick military trial and then kill them immediately after they are convicted.  The whole process should take no longer than a day or two.   

Once we elected to bring them to a US prison, geo, we started down a rabbit hole that has no way out.  There isn't a good solution once we started torturing people.  Now we're stuck with it, and perhaps this will serve as a lesson to us never to do such a thing again.

We Americans are a people of law and a constitutional government.   If we are a people of constitutional law we have to uphold it.    Some have implied that the detainees have no constitutional rights, and that is not true.  Amendment XIV article 1; All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

 The clause " nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"    says person , not citizen.   The laws apply to any person in the jurisdictions.   Noncitizens ar expected to obey traffic laws, and other common laws   and they are protected by the constitution.