9/11 Charges and Trials: Legalizing a Police State

By Kenneth J. Theisen; February 15, 2008

The Bush Regime announced on February 11 it will prosecute six men allegedly involved in the 9/11 attacks on a total of 169 charges.  It will try them under the Military Commissions Act (MCA). and is seeking the death penalty for all six defendants.  In doing so, the Bush administration hopes to tap into people’s anger at the tragic deaths of so many in order to justify its fascist agenda.  The Bush regime has done this repeatedly since 9/11 and we should not be fooled by this latest attempt to further its crimes using 9/11 as an excuse.

The fact that the regime will try these defendants under the military tribunal system is an attempt to justify and legalize “kangaroo trials.”  The “legal” procedures under this system undermine due process rights and make it possible to find innocent people “guilty” and then execute them under the color of law.

In 2006 the U.S. Supreme Court held that a previous military hearing
system violated the Geneva Conventions as it failed to provide minimum
legal protections.  Bush then got a compliant congress to pass the MCA
which recreated and allegedly legalized military tribunals.  Under the
MCA, any statements obtained through “torture” are not admissible in
the tribunal. But at the discretion of the military judge, statements
obtained through “coercion” may be allowed to be considered by the
tribunal.  The Bush regime does not consider waterboarding to be
torture and the Bush regime recently admitted that it utilized
waterboarding.  It is not even clear they consider it “coercion.”  But
what is true is that at least one of the six defendants, Khalid Sheikh
Mohammed, was subject to waterboarding.

Any objective observer would agree that waterboarding is torture, but
we are dealing with the Bush regime.  Recently in congressional
testimony, Attorney General Mukasey even refused to admit that the use
of the rack and thumb screws constitutes torture.  We can only imagine
what statements the Bush regime will try to get admitted even though
they were obtained by torture.  The regime will put its own definition
of torture forward at these proceedings. The military tribunal will
then determine whether the evidence will be admitted.

The legal director for the American Civil Liberties Union Steven
Shapiro correctly pointed out, “the administration now has placed
itself in a terrible bind because it subjected at least some, if not
all, the six men to harsh interrogation techniques that the world
regards as torture.”

Other due process problems exist under the MCA, as well. The MCA rules
allow the liberal use of hearsay evidence.  Information that is second
or third hand may be admitted by the tribunals.  Evidence such as “My
cousin told me that he overheard the defendant say he was involved in
the plot” may be admitted.  Hearsay evidence is very hard to refute as
you can not usually cross-examine witnesses that are not present. The
MCA rules also allow the admission of “classified evidence” where the
defendant and his lawyer are only allowed to see an unclassified
summary of the evidence. Jumana Musa, who has tracked the Guantanamo
proceedings for Amnesty International stated, “The rules are so loose
that, you know how they say a grand jury can indict a ham sandwich? A
military commission can convict that sandwich through torture and
hearsay.”  This is exactly why the Bush regime has chosen the MCA
procedures to prosecute the cases.

Still another problem with the procedures under the MCA is that while a
criminal trial in a civilian court requires a unanimous verdict, in the
military tribunals sentences of 10 years to life only require
three-fourths of the panel members to agree.  The death sentence does
require a unanimous verdict and the finding of a guilty verdict must
have been unanimous, as well.

Appeals are also seriously limited under the MCA.  The District of
Columbia Circuit Court of Appeals can hear appeals but only to
determine compliance with the standards and procedures under the MCA. 
This court in Washington has traditionally been one of the most
conservative in the country which why it was chosen to hear the MCA
appeals.  The Supreme Court may review that court’s ruling.

The MCA prohibits habeas corpus petitions by detainees which challenge
their imprisonment. The Supreme Court is currently considering a
challenge to that prohibition. If the Supreme Court strikes down the
habeas corpus provision of the MCA it would be expected that the
attorneys for these six defendants would challenge the Bush regime
plans to try them under the MCA tribunals. This may inhibit the Bush
regime plans for its show trial.

In addition to Khalid Sheikh Mohammed, the other defendants are
Mohammed al-Qahtani, Ramzi Binalshibh, Ali Abd al-Aziz Ali, Mustafa
Ahmad al-Hawsawi and Waleed bin Attash.  All six have been held
incommunicado for at least 6 years and subjected to extremely harsh
conditions, if not outright torture. Some of them were held in the
CIA’s secret prisons overseas where even the Red Cross was denied
access to the prisoners.

According to leaks from the Bush regime, during the torture
interrogations of Khalid Mohammed he allegedly confessed to
responsibility for the 9/11 attacks, the 2002 Bali nightclub bombings,
and the murder of Daniel Pearl of the Wall Street Journal. Given his
treatment, it is a wonder he did not also confess to the assassination
of Abraham Lincoln.

Mohammed al-Qahtani was also subjected to torture when he was
interrogated at Guantanamo Bay.  He was subject to interrogation
procedures approved by then Secretary of War, Donald Rumsfeld. He was
forced to take drugs, undergo enemas and subjected to prolonged
restraint, sensory overload, sleep deprivation, use of dogs, and
exposure to extreme temperatures. He tried to later retract his
statements, stating that they were made under duress. Will the military
tribunal allow his statements to be used against him and the other
defendants?

Under the rules of the MCA the military judges will decide whether the
statements of the Khalid Mohammed and Mohammed al-Qahtani will be
admitted into evidence.  In ordinary civilian courts such statements
would be ruled inadmissible.  But once again this is why the Bush
regime does not wish to conduct civilian trials.

The White House is delighted that they can now launch their latest
propaganda offensive.  White House press secretary Dana Perino stated,
“Obviously 9/11 was a defining moment in our history, and a defining
moment in the global war on terror. And this judicial process is the
next step in that story. The president is sure that the military is
going to follow through in a way that the Congress said they should.”
He should know, as he is the Commander-in-Chief of the officers who
will be trying the defendants.

The announcement of the charges comes at a time when the administration
has been bragging about its use of torture (see “Bush Regime is Proud
of its Torture Tactics” on this site.). The regime is claiming success
for the escalation of the war in Iraq.  It is actively expanding its
war of terror in Pakistan, engaging in military strikes there.  More
troops have been sent to Afghanistan and the possibility of war with
Iran continues.  The country is now in the midst of a presidential
election campaign where the winning candidate will have the choice of
continuing the Bush regime agenda or not.

The charges and the upcoming trials will be repeatedly referred to by
Bush regime officials over the coming year.  Over and over they will be
trumpeted as a reminder that the “war on terror” and the methods of the
Bush regime are allegedly necessary to “protect Americans.”  We will be
asked to go along with the Bush agenda in the interest of “national
security.”

The Democratic-controlled congress has not even made a serious attempt
to repeal the MCA since it came to power.  While Obama and Clinton both
voted against the MCA they have done little else to eradicate this
law.  There was an attempt to mitigate the impact of the MCA in the
Senate. On February 13, 2007, Senators Dodd, Feingold and Leahy brought
Senate Bill 576, the “Restoring the Constitution Act,” to the floor of
the United States Senate. The proposed law would have repealed the
worst parts of the Military Commissions Act. Neither Clinton nor Obama
signed on as co-sponsors at the time.  (see
http://irregulartimes.com/index.php/archives/2007/03/01/few-senators-support-repeal-of-military-commissions-act/
for more information on this bill.)  Obama has also stated that he
believes that military courts could be used to try detainees designated
as enemy combatants.  In the case of the six defendants here he has
said they should be tried by military court martial or by civilian
criminal courts, but not under the MCA tribunals.

The six defendants may or not be guilty of terrorism.  But we will
never know their actual guilt or innocence if the Bush regime is
allowed to proceed with its kangaroo courts.  And the bottom line is
that the Bush regime will use the hoopla created by the trials to
justify its past and future crimes which constitute state terrorism.