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.
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).
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.
Case in point: Operation Pastorius.
On June 13, 1942, just after midnight, a German submarine delivered four men onto a beach near Amagansett, Long Island, N.Y. The men lugged ashore enough explosives and other weapons to launch a two-year industrial sabotage campaign against American defense production. Four days later, another German cell, similarly equipped, landed on Ponte Vedra Beach, near Jacksonville, Fla. The Nazis called their plan "Operation Pastorius." But before the saboteurs could do any damage, U.S. authorities captured, tried, and executed them, one after the other, in the District of Columbia's electric chair.
Similarities between Operation Pastorius and the 9/11 defendants are striking: Both groups were designated "unlawful combatants." Both groups acted out of uniform, on U.S. soil, blending in with the population. And both groups faced military tribunals. President Franklin Roosevelt ordered the Pastorius conspirators tried by tribunal-and was challenged in court as President Bush is being challenged today.
In the Pastorius decision, known as Ex Parte Quirin, the Supreme Court held that "the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. . . . [A]n enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
Quirin is often cited as precedent for the U.S. military's right to try illegal combatants by tribunal. However, the American Bar Association, in a 2003 report on the treatment of enemy combatants, stated that "the Quirin case . . . does not stand for the proposition that detainees may be held incommunicado and denied access to counsel."
Navy Lt. Cmdr. Brian Mizer is representing Ali Abdul Aziz Ali, Khalid Sheikh Mohammed's nephew and alleged lieutenant. After filing a motion to delay the first pre-trial arguments for the 9/11 defendants, Mizer told reporters that he has not had adequate time to meet with his client. Army Maj. Jon Jackson represents Mustafa al-Hawsawi, another Mohammed co-defendant. Jackson told reporters he had only been allowed to meet with al-Hawsawi twice, while prosecutors have been working for years to assemble their case.
In Boumediene, the military commissions case now pending before the Supreme Court, Gitmo detainees argued that the MCA did not apply to them, and that if it did, it was unconstitutional under the Suspension Clause of the Constitution, which reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it."
But the D.C. Circuit Court of Appeals ruled in favor of the Bush administration, noting that MCA applies in "all cases, without exception" that pertain to aspects of detention.
In addition to objections over habeas corpus, groups such as Amnesty International complain that Mohammed and others have been held for years without charges being filed against them. Mohammed, for example, was held at secret CIA locations for more than three years before being transferred to Gitmo in September 2006. But the Geneva Conventions, which call for fair trials, do not specify who may be held in a conflict with a non-state actor like al-Qaeda or for how long.
The conventions "were designed in 1949 for different sorts of circumstances, and they don't provide easy answers in all cases to how to deal with international terrorists," said John Bellinger, top legal advisor to the U.S. State Department, in a November 2007 press conference.
On May 16, U.S. military defense attorneys for Mohammed and his alleged co-conspirators moved to have charges against their clients dismissed. Five defense attorneys argued in a motion that Gen. Tom Hartmann, legal advisor to the Convening Authority, Office of Military Commissions, steered prosecutors toward "sexy" cases like the 9/11 conspiracy in order to boost the image of the military commissions in advance of the presidential election.
Capt. André Kok, spokesperson for the Office of Military Commissions, called that charge "untrue."
With very limited exceptions, Hartmann noted, Congress has made available the same rights as are available to U.S. military personnel charged with war crimes. "We are willing to make those same rights available to people who are alleged to have committed war crimes against us," Hartmann said. "Is that not extraordinary? That tells you something about the United States of America and the fairness of what we're doing."
British Gen. William Howe used a military commission to prosecute Continental Army Lt. Nathan Hale, 21, a Yale honor graduate. After a British Loyalist tricked Hale into confessing himself an American patriot, British soldiers marched Hale to the Park of Artillery in New York City and hanged him.
During the Mexican War, Gen. Winfield Scott formed military commissions to prosecute war crimes committed by Mexican guerrillas and U.S. soldiers.
During the Civil War, President Abraham Lincoln approved military tribunals to try "rebels, insurgents, and all persons guilty of any disloyal practice affording aid and comfort to rebels." Lincoln's order also suspended the Writ of Habeas Corpus for individuals convicted by such a court. The commander of the Andersonville prisoner-of-war camp in Georgia was tried by military commission, as were the conspirators in Lincoln's assassination. The U.S. Supreme Court later upheld the decision to use such commissions.
During World War II, American field commanders in Europe and Asia used military commissions to try more than 60 enemy soldiers. Again, the U.S. Supreme Court upheld those actions.