Trying the 9/11 Suspects

The cases against suspected terrorists are the biggest test yet for a controversial system.

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The charges filed last week against six men at the Guantánamo Bay detention center are the U.S. government's boldest move yet to show that after years of setbacks it can finally serve justice at the controversial island prison. But proving that these detainees were responsible for the terrorist attacks of Sept. 11, 2001, promises to be a protracted and uncertain legal battle.

The new cases—which will be tried before a special military commission—are expected to reignite the long-simmering debate over the government's detention and interrogation policies for suspected terrorists. The prosecution's intent to seek the death penalty, considered a human-rights violation in much of Europe, will no doubt renew criticism abroad of a place that has held hundreds of men for years without charges or access to any meaningful judicial process. Indeed, the continuing controversies may taint whatever verdict is ultimately reached.

Until now, the government has enjoyed little success in trying detainee cases, largely because of challenges to the legality of the system itself. The first military commission system, which severely limited detainees' rights, was struck down by the U.S. Supreme Court in 2006, in part because it lacked approval from Congress. Although Congress soon created a more open system through the Military Commissions Act, the system has not yet been fully tested. Prosecutors have charged just a handful of men, and none have gone to trial; only one—Australian David Hicks—has pleaded guilty to supporting terrorism.

But Air Force Brig. Gen. Thomas Hartmann, legal adviser for the Office of Military Commissions, has been trying to assure the public that the trials will be fair. The military will open the trials to the press, he says, and limit the use of classified evidence, which could otherwise close parts of the trial. As with standard legal trials, Hartmann says, the defendants will have the right to a military lawyer, the right to remain silent without prejudice, the right to examine all evidence, and the right to call witnesses. "There will be no secret trials," he says.

The charges themselves are far more serious than any brought so far in the military commissions. They outline how the six individuals—including Khalid Shaikh Mohammed, the alleged mastermind of the 9/11 attacks—allegedly directed and aided the 19 men who killed 2,973 people when they flew planes into the World Trade Center, the Pentagon, and a field in Pennsylvania on 9/11. The allegations cite 169 overt acts, including overseeing training camps for hijackers, helping the hijackers enroll in flight school, and transferring money to them.

"Disaster." Yet prosecutors face steep challenges in legitimizing the new process to the public, and they could be weighed down by earlier missteps in the treatment and interrogation of detainees. "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. "It seems like putting them up re-energizes them as valuable commodities for our opposition."

A key question will be what evidence can be used at trial. Five of the six defendants were held in secret CIA-run prisons without charge. One sticking point is whether that treatment will be relevant. CIA Director Michael Hayden has confirmed that Khalid Shaikh Mohammed was subjected to waterboarding, a simulation of drowning that is considered torture by many legal experts. The question is whether evidence gained from that treatment will be admissible. Lawyers at the Center for Constitutional Rights have alleged that their client, Mohamed al Kahtani, another of the six, was subjected to interrogation techniques they consider torture. Will that treatment discredit the government's case? The military commission system bars the use of information elicited under torture, but it allows reliable and relevant evidence resulting from coercion. Distinctions between the two remain unclear.

Prosecutors, however, are trying to avoid the problem of tainted evidence entirely. Many of the charges, for instance, are based on money transfers, facts that require documents rather than statements or confessions. And prosecutors have tried to override the controversial CIA interrogations by sending FBI agents to reinterview detainees. They hope that the FBI’s gentler interviewing techniques will make statements more easily admissible.