It’s a harrowing feeling sitting mere feet away from men who plotted and executed a plan to kill so many Americans.
The five terrorist planners sit in traditional Muslim attire at their respective tables receiving the judicial grace of our democratic justice system. The Military Commission at Guantanamo Bay has been under way for nearly three years trying the case of the five Sept. 11, 2001, planners and for some, like myself, are able to observe these tribunals.
This is the first occasion that the American public has been able to face one of the September 11 plotters. Ramzi Bin al Shibh took the stand as a witness for a defense team motion for a cease and desist order alleging that the Joint Task Force at Guantanamo Bay has continued physical and psychological torture.
There seems to be little coincidence that President Barack Obama announced his plan for the closing of Guantanamo Bay detention facilities the day before.
President Obama, however, seems to have wanted to split the baby. There is no doubt of the danger posed by the five defendant terrorists on trial. The military judge has already ruled on a pre-trial motion denying a “complete” acquittal, meaning regardless of the outcome of trial, the defendants will not be released from U.S. detention. This means that this is really a capital sentencing trial, one that will be conducted in front of a panel of U.S. military officers.
The options are not easy to decide between. Continuing adjudication as a military commission limits the rights typically afforded American citizens and recognizes the September 11 terrorist planners as what they are – enemy combatants. However, by not having the trial on U.S. soil, the military commission is at the mercy of the political winds, infrequent hearings, and defense team’s insolence.
Just to give an example from the past two weeks, the largest issue covered was whether or not it is appropriate to have female guards shackling and assisting with transport of detainees to and from their hearings. The objections from defendants were that female guards denigrated their devout Muslim beliefs. The military judge had already granted an interim order preventing female guards from doing these jobs around the detention facilities, which is where the political side comes in. Defense teams, in a seemingly unending bout of motions, filed a motion that comments by politicians surrounding what became termed the “female guard issue” unduly influenced the trial judge. This debate of habeas style motions consumed entire days of argument.
From this example, it is apparent that trial will not be completed for at least another five years. Defense counsel estimated that trial wouldn’t even begin until 2023, if that early. In light of political statements like President Obama’s on Tuesday, members of the military commission as well as both sides of the adversarial process have to be wondering if they are in fact participating in a fruitless errand.
The start and stop of this process has already cost the American people a great deal from an economic standpoint to an emotional journey for closure from the events of September 11. Since their capture in 2002, there has been a concerted effort on the part of Congress, the president, and even the Supreme Court intervening to create a viable court system to try these individuals. However, there has been tremendous turnover in both defense teams and from the trial judge. This prosecution is also unique because the defendants are fighting the charges; all previous U.S. Military Commission trials at Guantanamo have resulted in guilty pleas.
The sense of urgency to resolve the predicament of Guantanamo Bay is even more problematic in the context of Supreme Court rulings. The Court in 2006 cast a shadow over the entire military commission process that held that it wasn’t envisioned by the Constitution. And later in 2008 ruled that detainees have a constitutional right to challenge their detentions. With 91 detainees still remaining incarcerated at Guantanamo, there is much work left to be done.
Without a cohesive plan for litigating these cases expeditiously, President Obama’s rhetoric becomes merely an echo of his Inauguration Day promise of closing the Guantanamo prison “within the year.” Those that violate our laws, international laws, and the laws of war deserve the swift hand of justice. But without a coherent, effective, and concerted effort from the White House and members of Congress, justice is a distant dream.
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