NEW YORK -- The alleged masterminds of 9/11 will be arraigned before a military commission at Guantanamo Bay on Thursday in a process the Bush administration compares to the Nuremberg trials. The Pentagon has flown in scores of journalists, and some 9/11 family members. But no matter how hard the administration tries to sell these arraignments as a great day for justice, it can't spin the Guantanamo courtroom spectacle into a fair judicial process, one worthy of the victims of September 11, 2001.
The Bush administration created the military commissions in November 2001, in part because it wanted to keep foreign terror suspects out of US courts where they might challenge the grounds of their detention or allege mistreatment by US personnel. Trying detainees by military commission would circumvent the pesky due process guarantees provided by US civilian courts.
But if the administration wanted timely justice, it miscalculated: six years on, not a single terrorist suspect has gone on trial before the commissions. It has managed to charge only eight detainees, most of them small-fry, including two who were teenagers at the time of their capture (and have spent a quarter of their lives at Guantanamo), and a Yemeni accused of working as a driver and bodyguard for Osama bin Laden. Imagine Nuremberg taking place six years after the war, with Hitler's driver and two teenagers in the dock. (A former kangaroo skinner named David Hicks was convicted after negotiating a plea bargain to nine months in jail in his native Australia.) Yet federal courts have prosecuted and convicted dozens of terrorist suspects, including Zacarias Moussaoui, who was also part of the 9/11 terrorist plot and Richard Reid, the "shoe-bomber."
Part of the reason the military commissions have been so inefficient is because like any new judicial system created from scratch, the meaning of the new rules need to be hashed out by the lawyers and judges. Lawyers for Guantanamo detainees say the military commissions lack fundamental due process guarantees, pointing out that they permit evidence obtained through abuse and allow the government to conceal information about how the evidence was obtained, making it nearly impossible to challenge. In June 2006, the Supreme Court agreed, ruling that they were unlawful. Four months later, Congress passed the Military Commissions Act, which authorized a new system of military commissions.
The Pentagon has been pressing to speed up the commission trials of those charged with 9/11 crimes, but for political rather than legitimate fair trial reasons.
Despite taking pains to convey the military commissions as impartial, the Pentagon hasn't been able to conceal the political influence at work behind the scenes. Last year, the chief prosecutor for the commissions (a US Air Force colonel) complained that even though he wasn't ready, he was being pressured by top Pentagon officials to bring cases before the 2008 presidential elections got too far underway. He subsequently resigned and has testified as a defense witness saying that the commissions are unfair.
In addition, a military judge presiding over the hearings ruled that the top Pentagon official overseeing the commissions had exerted undue influence over the prosecution and dismissed him from involvement in one of the pending cases. Most recently, on May 29, another judge was removed from the commissions without explanation, weeks after he criticized the government for pressuring him to set a trial date before the prosecution had turned all relevant evidence over to the defense.
But perhaps the most egregious bit of political wrangling was reported by the Daily News earlier this week. The Pentagon secretly invited 9/11 family member who is an outspoken supporter of the military commissions to attend today's hearings, but did not extend the invitation to family members who have criticized the commissions.
Prosecuting those charged with the 9/11 terrorist attacks are too important to be left to a process as overtly flawed and politically motivated as the Guantanamo military commissions. The detainees should be transferred to federal courts where they can be tried in the fair and transparent process that has served this country for more than 200 years. A fair trial in federal court would show the families of the 9/11 victims and the world that justice has finally been done.