KSM & Co. getting what they want at Guantanamo Bay


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The ‘trial of the century’ kicks off at the Guantanamo Bay war crimes tribunal Saturday -- again -- with the arraignment of confessed 9/11 mastermind Khalid Shaikh Mohammed and four alleged accomplices on mass murder charges that could lead to death sentences for the unrepentant “high-value detainees.”

Martyrdom at the hands of U.S. infidels -- just what they want.

KSM, as he is called by his captors and has adopted as his signature, has already been brought before the controversial military commission at the U.S. base in southern Cuba, where he upstaged the proceedings in 2008 with brash declarations of pride in orchestrating the terrorist attacks and his eagerness to be put to death for what he did.


Tribunal officers weren’t sure how to handle a guilty plea during the 2008 arraignment on capital charges, and the whole prosecution was scrapped a year later after President Obama took office vowing to close the Guantanamo operations and bring the terrorism suspects to U.S. civilian courts.

But having retreated in the face of fierce opposition on both sides of the aisle in Congress, Obama was forced to return to the war crimes court that has been criticized by human rights advocates worldwide as a forum designed to ensure convictions and deprive defendants of the protections of U.S. federal courts.

A 2009 reform of the Military Commissions Act addressed many of the shortcomings of the military tribunal, including new restrictions on evidence obtained through coercion -- interrogation techniques now defined as torture -- and some tweaking of the rules for admitting hearsay testimony.

Some legal watchdogs say the fixes make the tribunal more fair and transparent, while rights advocates continue to lambaste the U.S. government for creating a court they consider inferior to the federal judicial system.

‘If we had begun in 2001 with the system we’ve got today, we wouldn’t have had quite the food fight we ultimately had’ over the military commissions’ legitimacy, said Robert Chesney, a University of Texas professor of national security law and frequent blogger on Gitmo and other terrorism trials. He considers the reformed process fair and reasonably accessible to a public raptly interested in the confessed terrorism kingpins.

The American Civil Liberties Union begs to differ. Its lawyers have filed motions against Guantanamo military prosecutors’ plans to pre-emptively classify and erase any remarks made by the defendants alluding to their treatment in detention and interrogation. The rights group that has doggedly criticized the tribunal since it was created by presidential edict a few weeks after 9/11 also complains that the military commission’s imposition of a 40-second delay in the audio feed from the proceedings to those watching behind a soundproof glass wall is unjustified and destined to be confusing.


Hina Shamsi, one of the ACLU lawyers challenging the military’s attempt to shield embarrassing disclosures by the defendants subjected to waterboarding and other now-banned interrogation methods, said the mistreatment of detainees is a ‘dark reality’ of the tribunal and needs to be acknowledged.

‘It would be unprecedented and chilling for the government to argue that it can classify and censor statements about what the government did forcibly to a human being,’ said Shamsi, who was hoping to argue the ACLU motion before the military judge before the morning arraignment.

One of the commissions’ harshest critics is former chief prosecutor Morris Davis, the Air Force colonel who resigned and retired in 2007 after the Pentagon’s top lawyer ruled waterboarding permissible in dealing with the terrorism suspects. ‘The guy who said waterboarding is A-OK, I was not going to take orders from,’ Davis said at the time.

‘After a decade of starts and stops and revisions and failures, the system is already presumptively discredited,’ Davis said in an interview this week. ‘That the apologists for the commissions say they are essentially the same, or virtually the same, or nearly the same as federal court -- the fact that they have to put a qualifier on it proves it is not the same.’

Davis disparages as ‘a canard’ the government’s claim that the trial of KSM and his cohorts must be held at the remote military forum because war-crimes suspects captured on the battlefield may not have been accorded all the rights required in federal court, such as the rights to an attorney, to remain silent and to be considered innocent until proved guilty.

The Obama administration has allowed a second-rate system of justice to persist, Davis said, because it suits the military and intelligence communities’ desire to hide revelations of interrogation excesses.


Being convicted and sentenced to die in a tainted process would be all the more satisfying for KSM, Davis argues.

On hand for the hearing, at which the five defendants will be asked to enter pleas, are dozens of journalists, human rights observers and family members of 9/11 victims, all ferried down to the heavily secured Expeditionary Legal Complex at Guantanamo Bay, a sprawl of tents, container-offices and the purpose-built courtroom surrounded by razor wire and concentric fences. Closed-circuit feeds will also be relayed to viewers at four military bases on the East Coast, where other accredited observers and a few ordinary citizens will be allowed to watch what law professor Chesney says will be the most closely scrutinized trial since that of O.J. Simpson.

Whether the observers can make sense of the proceedings may depend on how often censors move in to muffle comments by the defendants they deem to involve classified information or to deny them a platform for provocative grandstanding.

Times national security writer Richard Serrano, who will be reporting from the arraignment, recalls that the 2006 trial of Zacarias Moussaoui, who unsuccessfully sought to join the 9/11 hijackers, involved intense security measures but no blanket suppression of his fiery outbursts.

Denying KSM a forum is a lost battle, Davis says, recalling the antics at his 2008 arraignment, which included a protest of the courtroom sketch artist’s rendition of his nose (too big), which he refused to approve until she slimmed it down. Under commission procedures that incorporate the odd detainee protection from the Geneva Conventions, Gitmo defendants have the right to prevent their image from being ‘paraded’ before the public.

‘If we execute him, we will be giving him exactly what he wants,’ Davis said of the outcome he expects, though likely still years away. ‘The greater punishment would be to give him life in prison and for him to have a long and healthy life.’