The government's announcement today charging six defendants at Guantánamo Bay for crimes stemming from the attacks of Sept. 11, 2001, are the Bush administration's boldest attempt to prove it can bring justice to the detainees.
Yet the charges—169 overt acts for "planning and execution" of the terrorist attacks—are unlikely to quell criticism anytime soon over the stalled pace of the judicial process for the detainees.
The military commission system has always been controversial, but these new cases are expected to reignite the long-simmering debate over the government's interrogation techniques, hampering any quick resolution.
What's more, the prosecutors' stated desire to seek the death penalty, a punishment seen as a human rights violation in many Europeans nations, will no doubt renew criticism abroad about the special military system that was created to handle detainee cases.
Already, lawyers and human rights organizations have condemned the military's choice. "These cases are going to end up being a total public-relations disaster," says David Glazier, a former Navy officer and now a professor at Loyola Law School.
Until now, the government has had little success bringing charges in the military commission. Its first procedural system, which severely limited the detainees' access to information, was struck down by the Supreme Court in 2006. Though Congress passed a law creating a new system later that year in the Military Commissions Act, prosecutors have charged just a handful of men, only one of whom—the Australian former kangaroo skinner David Hicks—has pled guilty.
The new cases, the most detailed brought so far by the military commission, outline how these six individuals—including Khalid Shaikh Mohammed—allegedly directed the actions of the 19 men who killed nearly 3,000 individuals when they flew planes into the World Trade Center and Pentagon.
The charging document, which lists the names of every individual killed in the 2001 attacks, includes allegations that Khalid Shaikh Mohammed conceived the attack, got approval and funding from Osama bin Laden, and oversaw the training of the hijackers. It details allegations that Walid Muhammad Salih Mubarak Bin 'Attash administered a training camp where two of the hijackers went, as well as visited Malaysia to observe and test airport security. It accuses Ramzi Binalshibh of helping hijackers get into flight school and sending them money in the United States. And it charges Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohamed al Kahtani with helping finance the hijackers, among other allegations.
"If they have competent evidence to prove all this—and I assume they did—it's going to be a very, very extraordinary and educational piece," says John Bickers, a law professor at Northern Kentucky University.
During a press briefing this morning, Thomas Hartmann, legal adviser for the Defense Office of Military Commission, said prosecutors hoped to make the trials as open as possible. He noted that all men will receive appointed military lawyers and be allowed to obtain outside civilian counsel as well. They will also have the right to remain silent without prejudice and to hear and cross-examine all evidence presented against them. "There will be no secret trials," Hartmann said.
But just how much evidence the government will be able to introduce remains in question. Five of the six men were held in secret CIA-run prisons. CIA Director Michael Hayden has publicly confirmed that Khalid Shaikh Mohammed was subjected to water boarding, a technique that simulates drowning and is considered torture by many legal experts. And al Kahtani's lawyers at the Center for Constitutional Rights say they have evidence he was subjected to torture by U.S. officials. Defense lawyers have already criticized the system as rigged against the defendants and will continue to challenge the use of any evidence obtained by these and other so-called enhanced interrogation techniques in trial. Says Vincent Warren, executive director of CCR, "No one will have faith in the results of these commissions because they are so tainted."
The cases now move to the next step: review by Hartmann's office and Susan Crawford, head of the convening authority for the military commission, who must determine if the evidence supports a full-blown trial with the possibility of a death sentence.