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An Inglorious Start

by JOANNE MARINER

“We will send a clear message to those who kill Americans,” President George W. Bush vowed on September 6, 2006, “[No matter] how long it takes, we will find you and we will bring you to justice.” Announcing that several detainees believed to be responsible for the September 11 terrorist attacks had been brought to Guantanamo, President Bush received a standing ovation when he said that they would soon be put on trial.

The president was speaking to an audience that included relatives of the victims of the September 11 attacks, but also, via the television networks, to the broader American public and, indeed, the rest of the world. His 35-minute speech was memorable as the first time in history that a US president has defended the use of torture, albeit by using euphemisms. (President Bush lauded the “alternative set of procedures” and “tough” techniques used on detainees. The CIA has since revealed that these methods included waterboarding, a torture method that dates back to the Spanish Inquisition.)

Now, with military commission trials beginning at Guantanamo, we are learning what President Bush meant when he spoke of justice and fairness. In the president’s degraded lexicon, in which “alternative” procedures are a synonym for torture, the definition of justice is flexible enough to include prosecutions that lack basic procedural guarantees.
A Historic Event

Unfair trials are wrong, period. The prosecution of the suspected perpetrators of the September 11 attacks is, however, much more than a run-of-the-mill trial. It is an historic event, which the world will watch closely, which historians will write about, and which will have deep meaning for the family members of all those who were killed. Its perceived success or failure will loom large in future understandings of American justice.

Especially given the abuses that have so badly marred the US record in recent years, it is a trial by which the United States—as much as the defendants—will be judged.

How will the world remember these trials? And how will the world’s perception of the trials affect their view of the September 11 attacks? Will people believe that the defendants were fairly prosecuted and, if found guilty, received their just deserts? Will the trials encourage conspiracy theories, or will it quell them?

Not Nuremberg

It is a deep slur to call a legal proceeding a show trial, but every trial is, nonetheless, a piece of theater. The public nature of the proceedings not only helps protect the defendant from unfairness, it serves to showcase the strength and integrity of the justice system.

The Nuremberg trial of major Nazi war criminals was successful theater. Even a member of the German defense team later wrote that the tribunal “was guided by the search for truth and justice from the first to the last day of this tremendous trial.” Some defendants were acquitted; most were not, but all had the opportunity to put up a strong defense.

Former Chief Military Commissions Prosecutor Morris Davis, remembering 2005 discussions with Pentagon general counsel William Haynes, reported that Haynes had said that the military commission trials would be “the Nuremberg of our time.” Davis pointed out, in response, that the acquittals at Nuremberg had lent credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis recalled, in an interview with The Nation. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’” Until recently, Haynes had oversight power over both the prosecution and defense at the military commissions.

Davis left the prosecutors office in October 2007, later explaining that the day he resigned was “the day I concluded that full, fair and open trials were not possible under the current system.”

Not a Fair Trial

Five defendants— Khalid Sheikh Mohammed, Mustafa al-Hawsawi, Ramzi Bin al-Shibh, Walid bin ‘Attash, and Ali Abdul Aziz Ali—will be arraigned this Thursday on charges of responsibility for the September 11 attacks. It is an enormous mistake not to be arraigning them in U.S. federal court.

The trials they face at Guantanamo may not be show trials, but they are not likely to be fair trials either, and certainly not trials that meet the standards of American justice. The victims of the September 11 attacks deserve better, as does the nation.

JOANNE MARINER is a human rights lawyer.

 

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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