When even the former chief prosecutor opposes a trial in the military commissions he headed, there's something seriously wrong.
Since their creation, the Guantanamo Bay military commissions have been a political football, with Bush and then Obama Administration officials supporting their use, conservatives in Congress insisting they be used to try all suspected terrorists, and a range of Democratic lawmakers and legal and military experts criticizing them as a substandard system of justice.
With the arraignment of Khalid Sheik Mohammed and his four alleged co-conspirators scheduled for a Guantanamo military commission this weekend, the "trial of the century" has brought this exceptionally politicized contest to the fore.
On Saturday, the alleged plotters of the September 11 terrorist attacks will finally have their official day in court - more than ten years after the crimes were committed. (Proceedings begun four years ago in the military commissions by the Bush Administration were suspended after President Obama took office.) If for some families of the 9/11 victims the trial's commencement will finally afford some relief, for other Americans, the event is primarily an embarrassment.
As former chief Guantanamo prosecutor Morris Davis wrote in Salon this week:
A military commission may be a justice-themed theatrical production - complete with a script, actors, a sound stage and costumes that create a passable courtroom-like atmosphere - but beneath that facade is a 'heads we win, tails you lose' charade where, as the government admits, even if a KSM or a [Abd al-Rahim al]-Nashiri is found not guilty he returns to a cell to continue serving what is likely a life sentence. That should not inspire anyone to wave the flag and shout USA! USA! in celebration of our vaunted exceptionalism.
For KSM & Co., the trial may be viewed as a vindication of sorts. Self-proclaimed jihadist warriors eager to bring death and destruction to America, the decision to keep them hidden in Guantanamo Bay for military trials sanctions that status, confirming that we have indeed been terrorized - a decade later, still too afraid to try five chained men in the heavily fortified New York federal courthouse less than a mile from the scene of the crime.
As former Navy Judge Advocate General Donald Guter wrote of the 9/11 defendants in The Miami Herald: "To deny them the martyrdom they seek, the United States should be treating them as common criminals, not warriors." Guter, who will be observing the hearing on Saturday for Human Rights First, was in the Pentagon when American Airlines Flight 77 struck.
Meanwhile, military prosecutors are seeking the death penalty for these five men - gifting them the chance to be memorialized by their al Qaeda peers as martyrs to their cause.
It would all be laughable, if it weren't actually so serious. The administration of justice for the deadliest terrorist attack ever on U.S. soil is nothing to play around with.
Nevertheless, on Saturday, the Gitmo games begin.