You call this justice for terrorism? Don’t applaud the 2021 Guantanamo trial of Khalid Shaikh Muhammed
Last week, a new judge at Guantanamo announced the long-awaited start date for the trial of the alleged co-conspirators of the 9/11 attacks. It is now scheduled to begin at Guantanamo on Jan. 11, 2121 — nearly 20 years after George W. Bush promised to “bring justice” to the perpetrators of 9/11 and 19 years to the day Gitmo opened its doors to detainees in the war on terror.
This is more than justice delayed. It is justice transformed, sadly so.
On the one hand, the news elicits a giant sigh of relief. Those accused of masterminding the attacks will finally face formal accusations in a court of law. In addition to justice, the trials may provide closure for the families of the victims of the attacks. Some of the family members will attend the trial; others will watch closed-circuit television broadcasts from stateside.
At the same time, the decision represents a serious defeat for the rule of law in America. This country prides itself on its criminal justice system in the world, where evidence is presented in the light of day, judges preside with fairness according to established rules, and juries make their determinations with a commitment to the truth. Rather than rely on these courts, the Bush administration stumbled its way to a separate system — known as military commissions — which operate outside public view, without the expertise of federal judges, and without lay juries. Obama attorney general, Eric Holder, tried and failed to make the case for bringing the trials back to the civilian courts.
Meanwhile, the commissions have so far failed to deliver justice. The system has faltered month after month, year after year as judges proved powerless to prevent interruptions in the proceedings caused by intelligence agencies, to curtail outbursts in the courtroom, to keep the prosecution from spying on the defense team, to keep on a schedule that would lead to a trial.
The numbers tell it well. Only eight detainees have been convicted; four of these convictions have already been overturned.
It’s not as if we don’t have evidence that the accused terrorists at Gitmo could have been tried in federal court. One was. Ahmed Ghailani was sent from Guantanamo to federal court in 2010, where he stood trial for his role in the bombings of two U.S. embassies, which resulted in hundreds of deaths. Judge Lewis Kaplan not only guided the jury through the mounds of evidence at the trial, but he even addressed the issue that has plagued the 9/11 trial from the outset: the issue of torture.
As American law dictates, the evidence derived from the torture of Ghailani was not allowed into court. The trial proceeded to resolution. The jury found the defendant guilty. Since 2001, there have been some 600 convictions of accused terrorists, including about 100 trials in civilian criminal courts.
While Obama initially put a stop to the military commissions in early 2009, he allowed them to resume soon thereafter; they have staggered forward since. This persistent embrace of the military commissions, despite their lack of progress, signals more than just defeat for the 9/11 trials. It undermines the reach, potential and power of the criminal justice system overall.
Today, the rejection of the U.S. civilian courts for the 9/11 trials is terrifying in its implications. We currently have a president who disses the federal courts and its judges with regularity and politicizes the entire judicial process, who has shown an enthusiasm for sidestepping the law, even in the light of day, and who has done what opponents of Guantanamo once feared — extended the idea of prolonged detention without due process to new categories of enemies.
The war on terror unleashed too many changes in U.S. law and policy that have yet to be walked back. The acceptance of an alternative court to try those deemed to be enemies is chief among its regrettable legacy.
Greenberg is director of the Center on National Security at Fordham School of Law.