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For years, human rights advocates have argued that terrorism is essentially criminal behaviour, and terrorists should therefore be tried under the rules of due process that democratic states have developed over centuries for dealing fairly with crime, and punishment. For that reason, the news last week that the Obama administration plans to put Khalid Sheikh Mohammed (aka KSM) and several other alleged 9/11 co-conspirators on trial in federal court is a real breakthrough, and should be applauded.
It is also a politically courageous thing for Barack Obama to do, since a trial will open up an entire can of worms over the torture policies carried out by his predecessor, George Bush. Reportedly, KSM has been subjected to waterboarding and other forms of torture on many occasions – including being tied around the neck and then yanked and slammed against walls, sleep deprivation etc. The basic mental competency of some of his co-defendants will also be an issue at the trial, and whether their deterioration may have been caused by the harsh interrogations they have received.
For much of this decade, KSM and other inhabitants of Guantanamo have existed in a legal limbo. Since the base was deemed to be not on US territory, those detained there by the US were denied the protections of US federal law. Simultaneously, the Bush administration classified them in ways that denied them protection under the Geneva Convention – at least until the US Supreme Court said otherwise, and ordered the inmates to be given basic Article 3 Geneva protections, in its 2006 ruling on the Hamdan vs Rumsfeld case. Since then, the US government has been in gradual retreat in its treatment of Gitmo prisoners – and Obama confirmed his intention to close the base, during his first crop of statements on assuming office in January.
Putting the 9/11 conspirators at trial is therefore a way of bringing the defendants to justice, and of closing the door on the torture regime run by Dick Cheney and his subordinates. Not surprisingly, conservative Republicans have instantly seen the risks for their party, and for the reputations of its recent leaders. This account on the JaxConservative blog for instance, all but accuses Obama of treason for putting the accused in the dock.
Inevitably, the trial will need to examine the validity and admissibility of the confessions extracted under torture from the accused. This will put Bush, Cheney and those Justice Department lawyers (John Yoo, Alberto Gonzales, who wrote the ‘torture memos’ that tried to justify the interrogation practices) in the dock of public opinion as well. Given the way Fox News will spin the story – ie, the trial will be giving terrorists a platform for their grievances – this will be a high risk political course of action for Obama.
Given that these men have been in custody for so long, it is hard to see how an open trial could possibly jeopardize any current counter-terrorist security operations. So far, KSM has confessed under torture to being responsible for almost every major terrorist event this decade – from personally killing the US journalist Daniel Pearl, to conceiving and organising the 9/11 plot, to financing the Bali bombings, to organizing the Richard Reid shoe bombing, to organizing the Millenium Plot in Britain, to planning to assassinate Jimmy Carter, to seeking to blow up the Empire State Building etc etc. Luckily for the Obama administration, they can probably prosecute KSM successfully for the 2, 973 separate counts of murder involved with 9/11, without using any of the torture-tainted confessions.
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How come? Well, allegedly when KSM was seized in Rawalpindi, Pakistan in 2003, a computer was seized along with him that contained on its hard drive:
* information about the four airplanes hijacked on 11 September 2001 including code names, airline company, flight number, target, pilot name and background information, and names of the hijackers
* photographs of 19 individuals identified as the 11 September 2001 hijackers
* a document that listed the pilot license fees for Mohammad Atta and biographies for some of the 11 September 2001 hijackers.
* images of passports and an image of Mohammad Atta.
* transcripts of chat sessions belonging to at least one of the 11 September 2001 hijackers.
* three letters from Osama bin Laden
* spreadsheets that describe money assistance to families of known al Qaeda members
* a letter to the United Arab Emirates threatening attack if their government continued to help the United States
* a document that summarized operational procedures and training requirements of an al Qaeda cell
* a list of killed and wounded al Qaeda militants.
KSM’s not very convincing response to this has been that the computer belonged not to him, but to his co-defendant Mustafa Ahmad al-Hawsawi – who is one of the two accused whose mental competence is at issue.
In 2004, the British law lords ruled that information gained from torture was inadmissible in British courts. For good reason. The most famous case this decade of the misuses of torture has been that of Abu Zubayda who was captured in Pakistan and tortured at Gitmo in 2002. Bush cited the case as one of its success stories, labeling Zubaida as a top al Qaeda operative. As Run Suskind showed his book One Per Cent Solution, Zubayda was nothing of the sort:
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries “in the voice of three people: Hani 1, Hani 2, and Hani 3” — a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail “what people ate, or wore, or trifling things they said.” Dan Coleman, then the FBI’s top al-Qaeda analyst, told a senior bureau official, “This guy is insane, certifiable, split personality.”
Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda’s go-to guy for minor logistics — travel for wives and children and the like. That judgment was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States.” And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.
When the relative un-importance of Zubaida became public knowledge, Bush’s response was to cover up the embarrassment.
“I said he was important,” Bush reportedly told [CIA chief George] Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” “No sir, Mr. President,” Tenet replied. Bush “was fixated on how to get Zubaydah to tell us the truth,” Suskind writes, and he asked one briefer, “Do some of these harsh methods really work?” Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, “thousands of uniformed men and women raced in a panic to each . . . target.” And so, Suskind writes, “the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered.”
At his own trial, KSM is expected to defend himself, as he did last year very ably, during arraignment proceedings before a Gitmo military commission. The maneouvring beforehand will include the crucial issue of his plea. If he chooses the path of martyrdom, KSM and his colleagues could well plead guilty – in which case they would be tried together and would – one assumes – ultimately be sentenced and executed. . Their martyr potential may be tarnished if they plead not guilty – which would however, be a route that would enable them to expose the torture methods used on them to gain evidence. (Reportedly, KSM’s eventual cooperation was as much due to concern over reports that his young children – aged six and eight – were being tortured with insects by Pakistani forces, as from his own response to waterboarding. )
If the defendants choose to plead ‘ not guilty’ the reputation of the US government cannot expect to emerge untarnished from the trial. It is however the only way to redress the damage done to its own legal and military traditions by the Bush/ Cheney endorsement of practices that are illegal under international law. The KSM trial will take the US back closer to a ‘rule of law’ response to terrorism. As Juan Cole recently pointed out. Thomas Jefferson had explained in a letter to James Madison in 1788 why terrorists should be tried in open federal court :
“Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension.”
Exactly. Jefferson was right – suspension of liberty quickly becomes habit, and it damages the nation as much as it hurts the accused. Fox News will, no doubt, find Thomas Jefferson part of the socialist conspiracy headed by President Obama to destroy the peoples’ faith in America and all it holds dear. As The Onion reported satirically only last week, many Americans feel outraged at the destruction of an image of the Constitution that exists solely as a fantasy within their own heads.
Self-described American patriot Kyle Mortensen, 47, is a vehement defender of ideas he seems to think are enshrined in the U.S. Constitution and principles that brave men have fought and died for solely in his head.
Kyle Mortensen would gladly give his life to protect what he says is the Constitution’s very clear stance against birth control.
“Our very way of life is under siege,” said Mortensen, whose understanding of the Constitution derives not from a close reading of the document but from talk-show pundits, books by television personalities, and the limitless expanse of his own colorful imagination. Mortensen’s passion for safeguarding the elaborate fantasy world in which his conception of the Constitution resides is greatly respected by his likeminded friends and relatives, many of whom have been known to repeat his unfounded assertions verbatim when angered….Mortensen told reporters that he’ll fight until the bitter end for what he roughly supposes the Constitution to be….
Unfortunately, it is in that kind of climate that the KSM trial will be conducted. Better that though, than torture and indefinite detention without trial.