Why the Gitmo Tribunals are a Bad Idea


The Justice Department’s vile and underhanded attempt to rig the penalty-phase trial of Zacarias Moussaoui and nail him with a death penalty is Exhibit A for why Bush and Rumsfeld should not be allowed to handle the Guantanamo detainee and other detainee cases through military tribunals.

What the government did in the Moussaoui case was try to undermine a defendant’s fundamental right to a fair trial by secretly coaching prosecution and defense witnesses in how to testify.

This was the government’s star terrorism case. Not only has Moussaoui admitted that he was working with Al Qaeda–he admitted he was trying to learn how to fly large passenger planes into buildings. The government’s argument for having him executed is that “if only” he had admitted to FBI investigators, after his arrest, that he was learning to fly so he could participate in the suicide crashing of airplanes into tall buildings, Washington would not have been so clueless about the approach of the 9-11 attacks.

It’s not so much about killing Moussaoui, then, as providing a cover for the administration’s incredible ineptness, or worse, in the weeks leading up to 9-11, when all kinds of warnings about a major terror attack were coming into intelligence offices, and nothing was being done about them.

The trouble is, the government’s case is worse than weak. First of all, there is no indication that even if Moussaoui had laid it all out that the FBI would have done anything differently (after all, the agency’s bureau in Minnesota had the information that he was learning to fly and had shown no interest in take-offs or landings, and that had gone nowhere in the FBI bureaucracy). The prosecution attorney who coached government witnesses, all from the Federal Aviation Administration and the Transportation Security Administration, felt the need to provide them with detailed transcripts of what had transpired earlier at the trial, and to tell them what to and what not to say, because, as she put it, the prosecution’s case for a death penalty had holes in it so big that “the defense can drive a truck through.”

So this is how the Bush/Gonzales Justice Department operates, and how it views our vaunted legal system. In order to win a case, it is willing to lie, cheat, coach witnesses–whatever it takes to get its way.

Fortunately, Federal District Judge Leonie Brinkema has stood up for the Constitution, even for a man as demented and bent on evil as Moussaoui, and has threatened to abort the trial–actually a penalty phase hearing since Moussaoui has already admitted his guilt on the charges. Given the level of passion involved in this case, which is being attended by relatives of some of the victims of 9-11–it took a lot of courage for Judge Brinkema to act as she did.

Who is going to act so boldly though, in defense of the innocent captives at Guantanamo, though?

If the government has its way, the 500 people who are held there, many of whom have been locked up, tortured, and abused for over four years, and some of whom were as young as seven when they were captured by U.S. forces in Afghanistan and elsewhere and renditioned to the US Naval base on the island of Cuba, will never have a trial or a judge. If the bush administration has its way they will instead face a panel of military “judges,” will not have the benefit of the Constitutional presumption of innocence, will not have the right to question their accusers or to call their own witnesses. They will be railroaded. Many could end up being renditioned on to countries where they could face torture or death. Others could end up being executed by the U.S.

Yet studies have already shown that most of those held are probably innocent of any crime–indeed may not have even been fighting at all in Afghanistan. A key problem is that the U.S. offered bounties to people who turned in “terrorists” in Afghanistan, and in that impoverished, war-torn, and tribally factionalized land, there were plenty of people willing to turn in neighbors, personal enemies, political rivals, or someone with a legitimate grievance against them, for a stack of dollars, no questions asked.

At this point though, it’s not in the administration’s interest to admit its mistakes. Better to set up kangaroo tribunals to “prove” that everyone held at Guantanamo is guilty.

Their attempt to do it with Moussaoui’s trial was exposed and luckily, a judge did her duty and blocked the effort to kill him and hide the government’s bungling.

Who will stop them in Guantanamo?

DAVE LINDORFF is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of CounterPunch columns titled “This Can’t be Happening!” is published by Common Courage Press. Lindorff’s new book, “The Case for Impeachment“,
co-authored by Barbara Olshansky, is due out May 1.

He can be reached at: dlindorff@yahoo.com



CounterPunch contributor DAVE LINDORFF is a producer along with MARK MITTEN on a forthcoming feature-length documentary film on the life of Ted Hall and his wife of 51 years, Joan Hall. A Participant Film, “A Compassionate Spy” is directed by STEVE JAMES and will be released in theaters this coming summer. Lindorff has finished a book on Ted Hall titled “A Spy for No Country,” to be published this Fall by Prometheus Press.