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Thorny Issues Surround Military Terror Tribunal at Guantanamo

Attorney General Eric Holder gestures during a news conference at the Justice Department in Washington, where he announced plans to try avowed 9/11 mastermind Khalid Sheikh Mohammed and four alleged henchmen before a military commission, April 4, 2011

The Obama Administration recently reversed a decision about the trial venue for alleged 9/11 mastermind, Khalid Sheikh Mohammed. He and four alleged co-conspirators now face justice in a military tribunal at Guantanamo Bay, Cuba, not a civilian federal court on the U.S. mainland. There is controversy over how the decision was reached and its possible legal ramifications.

Attorney General Eric Holder said earlier this month that he opposes a military tribunal for Mohammed. But Holder said he finally agreed to a military tribunal only reluctantly because of Congressional resistance to a federal civilian trial.

“I know this case in a way that members of Congress do not. I've looked at the files. I've spoken to the prosecutors. I know the tactical concerns that have to go into this decision, so do I know better than them? Yes. I respect their ability to disagree, but I think they should respect the fact that this is an executive branch function,” said Holder.

In January, lawmakers passed a law prohibiting the use of federal funds to transfer defendants from Guantanamo to the United States. Holder acquiesced, saying the administration cannot allow further delay of the trial, because family members of 9/11 victims have waited nearly a decade for justice.

Alexander Santora, is the father of firefighter Christopher Santora, who perished in the 9/11 attacks. "We should be in the sentencing stage, we should have been in the sentencing stage when they shut it down, and here we are starting from square one. It just boggles my mind," he said.

Critics say a military tribunal could actually delay justice. Hina Shamsi, Director of the National Security Project at the American Civil Liberties Union, said military tribunals have lower standards that do not meet U.S. constitutional and due process requirements.

“Because they have lesser protections with respect to admission of secret evidence, admission of hearsay evidence, and in some circumstances evidence that has been obtained through coercion, they’re going to be challenged on structural and evidentiary grounds as well,” said Shamsi.

Defendants convicted in military trials have the right of appeal, all the way to the U.S. Supreme Court. The process can take many years.

Annemarie McAvoy, adjunct law professor at Fordham University, said certain civilian due process procedures are not feasible in terror trials. One is the constitutional right to a speedy trial.

“In the United States, you have a right to an attorney. How can you get an attorney to Afghanistan on a battlefield within an hour or a day? You can’t. Especially an attorney who is familiar with whatever the process is in the United States and who can speak the particular language that that person speaks,” she said.

McAvoy adds that unlike civilian trials, military tribunals can present evidence without the suspect knowing how it was obtained in order to protect intelligence sources.

“In the United States, the problem is, you also have a right to all of the information without any sort of filter for whether it’s national security information or not, which means that in the U.S. system, on our grounds, that could really hurt us,” said McAvoy.

McAvoy said a terror trial in New York also exposes the city to additional risks of attack. Shamsi disagrees.

“Hundreds of terrorism cases have been tried in the federal courts without posing undue risk to American security," Shamsi said. "In fact, it’s the kind of risk that the American judicial system and security system knows well how to address, as shown by the fact that these trials have taken place.”

Adding to McAvoy’s concerns about security issues are complaints by New York Mayor Michael Bloomberg about the city's cost of securing the trial. Shamsi counters that Guantanamo exacts a price, nonetheless, by damaging America’s global image, because President Obama promised to close the controversial facility.

These are some of the thorny issues underpinning the trial of Mohammed and his four alleged co-conspirators. Holder said it was unclear whether the suspects could be sentenced to death if they pleaded guilty in military court.