Features

Trial of the century

Military | As procedures against 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators begin this month, military commissions used throughout U.S. history also will go on trial

Issue: "Unify and conquer," June 14, 2008

Nearly seven years after Islamic terrorists used passenger jets as missiles to attack the United States, the names most frequently on the lips of newscasters in relation to the attack are those of the suspected perpetrators: Are confessed 9/11 mastermind Khalid Sheikh Mohammed and other suspected terrorists being treated well at Guantanamo? Were they subjected to torture? Will they receive a fair trial?

But the 90-page Department of Defense "Charge Sheet" that forms the basis for the scheduled June 5 arraignment of Mohammed and four other alleged 9/11 co-conspirators provides a grim reminder that other people were involved.

Two thousand nine hundred seventy-three people, to be exact.

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It took the DOD Criminal Investigation Task Force 22 pages to completely detail the charges against the five alleged co-conspirators, who are to be tried by military commission for crimes ranging from hijacking and terrorism to "murder in violation of the law of war."

It took 68 more pages to list the names of all the victims of those crimes. From Victim #1-flight attendant Barbara Jean Arestegui, 38, killed when American Airlines Flight 11 slammed into the World Trade Center-to Victim #2,973-Honor Elizabeth Wainio, 27, who called her step-mom from United Airlines 93 and calmly said goodbye.

Now, finally, the victims' families will see the alleged 9/11 conspirators tried under the Military Commissions Act of 2006 (MCA).

Maybe.

The June 5 arraignment of Mohammed and his co-defendants-Walid Muhammad Salih Mubarek Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al-Hawsawi-comes on the verge of a highly anticipated Supreme Court decision on the constitutionality of military commissions. The core issues: Whether the detainees currently held at Guantanamo Bay are entitled to habeas corpus, or the right to challenge in federal court the legality of their detention.

In general, liberal politicians and left-leaning human-rights groups say yes. The Pentagon, conservative think tanks, and the Bush administration say no. The high court's decision in Boumediene v. Bush, due by June 30, may decide whether the five, as well as other Gitmo detainees, may be tried by military commission at all.

Congress passed the Military Commissions Act of 2006 after the Supreme Court, in June of the same year, declared unconstitutional a military trial system established by the Bush administration in 2002. With the MCA, Congress attempted to correct flaws the high court cited, and to establish military commissions (also called tribunals) consistent with similar courts in other parts of the world, such as the International Criminal Court and the widely respected International Criminal Tribunal for the Former Yugoslavia (ICTY), currently seated in The Hague, Netherlands.

Defendants' rights under the MCA mirror almost point by point both those afforded the accused at the ICTY and even in U.S. District Court. Defendants are provided free counsel or may hire their own; they have the right to be present at trial, the right to examine all evidence against them, the right to cross-examine witnesses, and the right to appeal.

In some cases, the MCA commissions afford the Gitmo detainees broader rights than they would enjoy elsewhere, even in federal court. For example, the MCA provides for speedier trials than either the ICTY or U.S. District Court, and defendants at ICTY may be convicted by a simple majority rather than the two-thirds vote required by the MCA. In district court, a unanimous decision is required.

But while extending many rights to terror detainees, Congress with MCA eliminated federal courts' jurisdiction to hear pending habeas corpus applications-or challenges to the legitimacy of their detention-from detainees who have been designated as "enemy combatants." Under the international law of armed conflict, or law of war, the United States has the authority to detain enemies who have engaged in combatant actions-not as punishment, but to keep them off the battlefield. The Bush administration holds that federal judges ought not to be involved in second-guessing Pentagon war-fighters on that point, especially since the Defense Department has identified by name at least 10 former terror detainees who have rejoined the fight.

Still, the American Civil Liberties Union argues that denying Khalid Sheikh Mohammed and other Gitmo detainees habeas corpus rights "violates the Constitution and basic American values." Amnesty International charges that it violates international law. Both Hillary Clinton and Barack Obama have said that if elected, they would do away with military commissions altogether and try terror-war criminals in federal court.

"Many Democrats say military commissions are an illegitimate process, that they don't comport with international standards, and are yet another 'illegal tool' of the Bush administration," said Charles Stimson, a Heritage Foundation senior legal fellow and former Deputy Assistant Defense Secretary for Detainee Affairs. But, Stimson points out, U.S. field commanders and commanders-in-chief have long used military commissions to try enemy combatants in time of war.

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