Freedom of Information
November 19, 2009
The government of the United States has announced it will seek the death penalty for alleged 9/11 hijackers due to be put on trial in New York city. Among the five Guantanamo detainees due to be transferred to the site of the 2001 attacks on the World Trade Centre is the “self-confessed mastermind of the September 11th attacks”, Khalid Sheikh Mohammed, according to The Guardian1.
President Obama affirmed that he is “absolutely convinced that Khalid Sheikh Mohammed will be subjected to the most exacting demands of justice. The American people insist on it, and my administration insists on it”.
Khalid Sheikh Mohammed, who has been held in legal limbo at the United States’ Guantánamo Bay prison on the island of Cuba since his capture in March of 2003, has been subjected to indefinite detention without trial and prolonged periods in solitary confinement in violation of both the U.S. Constitution and internationally accepted standards covering imprisonment.
The New York Times reported in April 2009 that a 2005 Justice Department legal memorandum revealed that Khalid Sheikh Mohammed had been subjected to waterboarding 183 (one hundred and eighty three) times in just one month – March of 20032. The memorandum did not mention whether or not Mohammed had been subsequently subjected to additional waterboarding, although the use of “enhanced interrogation techniques”, a term favoured by key members of the Bush administration as an alternative to “torture”, is widely acknowledged to be prevalent at Guantánamo Bay.
The New York Times evidently does not see the irony in confirming that Khalid Sheikh Mohammed endured simulated drowning 183 times in one month – equating to more than five times each day – before referring to him as “the self-described planner of the Sept. 11, 2001, terrorist attacks” in the very same paragraph.
U.S. Attorney General Eric Holder, who made the announcement that the death penalty would be sought in the civilian trial of Mohammed and four others, said of the decision to bring the suspects to New York to face trial, “Today’s announcement marks a significant step forward in our efforts to close Guantánamo and to bring to justice those individuals who have conspired to attack our nation and our interests abroad”3. The reference to U.S. “interests abroad” is an apparent reference to Abd al-Rahim al-Nashiri, due to be tried for the 2000 bombing of the U.S.S. Cole in Yemen.
Al-Nashiri, however, will not stand trial with Khalid Sheikh Mohammed, and will instead be tried by military commission. This controversial practice, introduced by the Bush administration in November of 2001 before being reintroduced as the Military Commissions Act in 2006, allows for trial in complete secrecy by a panel of judges appointed by the executive branch, followed by execution if a guilty verdict is passed. Barack Obama provoked outrage in May of 2009 when he clarified that he “supports the idea of the military commissions but opposes the version of the law that had been governing such trials in recent years”4.
[efoods]Following the passage of the Act in 2006, The Center for Constitutional Rights observed that, “[a]mong other shortcomings”, the Military Commissions Act, “rejects the right to a speedy trial, allows a trial to continue in the absence of the accused, delegates the procedure for appointing military judges to the discretion of the Secretary of Defense, allows for the introduction of coerced evidence at hearings, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused full access to exculpatory evidence”5.
Remarkably, The New York Times and other prominent newspapers have characterised the announcement that some of those to face trial would be tried in civilian courts as a “major policy shift from the Bush administration, which contended that suspected Al Qaeda members should not be treated like — nor given the rights of — ordinary criminals”6.
Such a statement by no means sets The New York Times apart from other mainstream media outlets and is extremely misleading, belying the fact that, as reported in the same article, the Obama administration is in reality preserving and endorsing the previous administration’s contentious policy of trying “terror suspects” in secret by military tribunal. Quite how such a blatant continuation of a policy widely derided as inhumane and in direct violation of the U.S. Constitution constitutes a “major shift” from the Bush doctrine on terrorism stretches the limits of credibility.
Geoffrey Robertson, writing in the Comment is Free section of The Guardian’s website under the heading “A nobler, trickier path to justice for 9/11”, states that “This is a trial that must be seen to be fair… Much will depend on the choice of judge, who must be conspicuously independent and of sufficient steel to reject evidence obtained by torture – there is no doubt that Khalid Sheikh Mohammed has been waterboarded”7.
Robertson goes on to remark that “Obama has taken the more difficult, but more principled, path”, before directly contradicting himself in the very next paragraph by stating that “It is regrettable that the non-9/11 defendants still in Guantánamo are to face military trial… If jury trials are appropriate for the 9/11 conspirators, then they should be afforded to all prisoners whom American prosecutors wish to execute or to incarcerate for the term of their natural life.”
What is truly regrettable is that such obvious double standards dominate the mainstream press’ coverage of last week’s announcements regarding Khalid Sheikh Mohammed and his fellow co-defendants. It is an astoundingly callous display of bravado on the part of an administration which consistently parades itself as an alternative to the human rights abuses and civil rights erosions perpetrated by its predecessor to pursue the death penalty for a man who has admittedly been repeatedly tortured in order to extract from him a confession of guilt.
Furthermore, Obama & Co.’s decision to preserve the abhorrent practice of trial by secret military tribunal is lamentable, and does little to assuage the concerns of those who see his administration as distinct from that of George W. Bush in terms of nothing but rhetoric. This trial will also bring us no closer to understanding who is really responsible for what happened on September 11th 2001; even if Khalid Sheikh Mohammed and all who stand charged alongside him are convicted and put to death it will be obvious to anyone who bothers to take more than a passing interest that justice has not been done and that Obama is merely carrying on where his predecessor left off.
19/11 accused Khalid Sheikh Mohammed to be tried in New York court, http://www.guardian.co.uk/world/2009/nov/13/911-accused-new-york-trial
2Waterboarding Used 266 Times on 2 Suspects, http://www.nytimes.com/2009/04/20/world/20detain.html?_r=2&hp
3Accused 9/11 Mastermind to Face Civilian Trial in N.Y., http://www.nytimes.com/2009/11/14/us/14terror.html
4Obama resurrects military trials for terror suspects, http://www.cnn.com/2009/POLITICS/05/14/obama.military.tribunal/index.html
5Factsheet: Military Commissions, http://ccrjustice.org/learn-more/faqs/factsheet:-military-commissions
6Accused 9/11 Mastermind to Face Civilian Trial in N.Y., http://www.nytimes.com/2009/11/14/us/14terror.html
7A nobler, trickier path to justice for 9/11, http://www.guardian.co.uk/commentisfree/2009/nov/13/nobler-trickier-path-september11-justice