With last week’s announcement that charges against Khalid Shaikh Mohammad and his four co-defendants had been authorized, the on-again, off-again military commission proceedings in the 9/11 case have now officially begun. The United States is seeking the death penalty against all five men, who are accused of the crimes of terrorism, hijacking, murder, conspiracy, and intentionally causing serious bodily injury.
The case has been called the trial of the century. Sixty-six pages of the 123-page charge sheet are taken up by the long list of victims of the 9/11 attacks, from flight attendant Barbara Jean Arestegui, on American Airlines Flight 11, to passenger Honor Elizabeth Wainio, on United Airlines Flight 93.
The stakes in the case are high; the facts are extremely emotive, and the defendants could hardly be less sympathetic. Khalid Shaikh Mohammad has already claimed responsibility for planning the attacks, and the other defendants are accused of playing key organizational or financial roles in them.
For the verdict in such an important, high-profile case to be recognized as just, the trial needs to be seen as fair. The defendants should be granted basic procedural guarantees in proceedings before an independent and impartial tribunal.
But while US officials have put much recent effort into lauding the fairness of the military commissions at Guantanamo, the government still asserts that defendants before the commissions have no constitutional rights. And though the rules governing military commission proceedings have improved significantly over the years, the commissions’ basic structure is still unconducive to independence and impartiality.
Judicial Independence vs. Military Discipline
The normal work of military commission judges is to preside over courts-martial of active-duty US soldiers who are accused of military offenses. As the U.S. manual for courts-martial explains, the purpose of military court proceedings is not simply to uphold justice, but also “to assist in maintaining good order and discipline in the armed forces [and] to promote efficiency and effectiveness in the military establishment.”
Unlike the federal courts, where justice is the overriding goal and judicial independence has strict constitutional protection, military court proceedings are structured to accommodate the imperative of military discipline. Both the members of the commissions—the commissions’ version of a jury—and the military judges who preside over them fall within the military chain of command. They belong to a force that deems everyone held at Guantanamo to be the enemy, are part of a hierarchy that leads upward to the president as commander-in-chief, and depend on their hierarchical superiors for promotion and career advancement.
Military judges do not have life tenure, and are not independent adjudicators belonging to a co-equal branch of government. Unlike federal judges and civilian juries, military judges and members of military commissions are selected for their duties rather than drawn randomly.
Even before the current set of military commissions were given their challenging and controversial caseload, the flaws in the military justice system were apparent. Proposals have been made to reform the system to strengthen the independence of military judges and shift the scales toward justice. The 2001 Cox Commission Report, for example, recommended that military judges be granted more authority and autonomy, and that the power of military commanders be limited, similar to changes made in recent decades in countries like Australia, Canada and South Africa.
Without meaningful protections for their independence, judges and juries are less likely to pursue justice without fear or favor, or to make unpopular and controversial decisions.
The First 9/11 Trial
To the extent that the importance of an independent and impartial tribunal is in doubt, it is worth remembering the only defendant who has, to date, been prosecuted for the 9/11 attacks: Zacarias Moussaoui. Tried in federal court in Virginia, Moussaoui was sentenced in 2006 to life imprisonment without parole for his role in the 9/11 conspiracy.
Judge Leonie Brinkema, who presided over the trial proceedings, issued a series of courageous and controversial rulings. Unhappy with the CIA’s refusal to permit defense counsel to interview detainees whose testimony could aid in Moussaoui’s defense, she took aggressive steps to force the question. Moussaoui was as obnoxious, unsympathetic, and politically toxic as a defendant could be, but Judge Brinkema still made formidable efforts to ensure his right to a meaningful defense.
The Moussaoui case also underscores the power and humanity of a civilian jury. Although prosecutors sought the death penalty, despite exceedingly thin evidence implicating Moussaoui in the 9/11 conspiracy, the jury voted for life without parole. A single juror reportedly saved Moussaoui from death.
“Disappearance,” Torture, Indefinite Detention, Military Trial
Since entering US custody, the five defendants in the current 9/11 case have been subject to a range of abuses: “disappearance,” torture, indefinite detention in CIA black sites, and now Guantanamo. A flawed trial before a military commission is probably the best they expected. But it is not what we should give them.
Joanne Mariner is the director of Hunter College’s Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law.
This column previously appeared on Justia’s Verdict.