The 9/11 Trials

Wednesday, February 13, 2008

THE DEFENDANTS stood accused of savage acts, including mass murder. After lengthy delay, the United States put them on trial by military commissions, which did not include all of the procedural protections of courts-martial. All were convicted, and most were sentenced to death.

But shortly after the trials, word began leaking out that much of the information used to convict the defendants was obtained through coercive methods, including torture. The outrage fueled by the atrocities soon turned into national and international indignation at the treatment of the defendants at the hands of the U.S. government. None of the defendants was executed, and eventually all were released.

The episode took place in 1946, when the United States established military commissions in Dachau to try 73 Nazi officers and soldiers accused of gunning down more than 100 American prisoners during the Battle of the Bulge in 1944. The so-called German Malm¿dy case is described in a forthcoming history of military commissions by Loyola Law School professor David Glazier.

While obviously not exact, the parallels to the upcoming trial of six Guantanamo Bay detainees are notable. The lessons should be heeded.

The Pentagon announced Monday its intention to prosecute Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11, 2001, terrorist attacks, and five others who allegedly participated in the plot. The trial is long overdue. Also welcome is the government's move to re-interview the detainees in order to more legitimately obtain evidence originally gleaned using coercive methods. The administration acknowledged last week that Mr. Mohammed was subjected to waterboarding, or simulated drowning -- a technique long considered illegal under international treaties and U.S. law.

Yet even with these positive developments, the administration can and should do more to ensure the kind of fair trial worthy of the world's leading democracy. That goal is in doubt because of the flaws inherent in military commissions. The rules established by the Military Commissions Act of 2006 still allow the introduction of evidence obtained through coercive means. The presiding judge may also allow hearsay evidence -- something forbidden in the traditional justice system. Although lawyers for detainees may view some classified information, they are prohibited from discussing that evidence with their clients, who thus may not be able to rebut the information or impugn the motives of the source. The fact that the government is seeking the death penalty for all six defendants argues for greater legal safeguards; the loopholes in the law mean the legitimacy of any death sentences could be rejected by the rest of the world.

There is still time for the administration and Congress to fine-tune the commissions. This should be done if for no other reason than to ensure that the outrage felt by the world on Sept. 11 remains focused on those who perpetrated the atrocities -- and not on the country that would punish such murderers. More fundamentally, doing so is essential to preserving the bedrock American values of fairness and justice that al-Qaeda aimed to destroy.

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