Skip to main content

Will a military trial of the 9/11 suspects be credible?

By Douglass Cassel, Special to CNN
updated 1:40 PM EDT, Mon May 7, 2012
A courtroom drawing shows Mustafa al Hawsawi at his arraignment on May 5 at the U.S. Naval Base in Guantanamo Bay, Cuba.
A courtroom drawing shows Mustafa al Hawsawi at his arraignment on May 5 at the U.S. Naval Base in Guantanamo Bay, Cuba.
STORY HIGHLIGHTS
  • Military trial of the alleged planners of the 9/11 attacks on America began on Saturday
  • Douglass Cassel: Trying them in a U.S. military commission will not be seen as credible
  • He asks, why not try them before the same civilian courts that try homegrown terrorists?
  • Cassel: The decision to use a military trial was made for reasons of politics, not justice

Editor's note: Douglass Cassel is a Notre Dame presidential fellow and professor of law at the University of Notre Dame. He has filed briefs in the U.S. Supreme Court on behalf of the rights of prisoners at the U.S. Navy base at Guantanamo Bay, Cuba, and accountability for human rights violations under the Alien Tort Claims Act. He served for three years as a lieutenant in the Navy Judge Advocate General's Corps.

(CNN) -- Formal trial proceedings against the alleged planners of the 9/11 atrocities have finally begun. Khalid Sheikh Mohammed and four co-defendants were arraigned on capital charges before a military judge in Guantanamo Bay, Cuba, on Saturday. The Obama administration claims that its improved military commission rules ensure a fair and credible trial. But outside the United States, who will view a U.S. military trial and potential execution of our enemies as credible?

Doubters will have ample reason for skepticism: If there is indeed sufficient evidence of the defendants' guilt, why not try them before the same civilian courts that try homegrown terrorists like Oklahoma City bomber Timothy McVeigh?

Resorting to trial by military commission amounts to an admission that the government is unwilling to take the risk of proving the 9/11 defendants guilty beyond a reasonable doubt, under the same rules that apply to trials of heinous criminals. If we want to hand al Qaeda a re-energizing martyrdom, this may be a good way to do it.

Douglass Cassel
Douglass Cassel

Doubts will be magnified by the fact that the Obama administration initially planned to try the defendants in federal court in New York City. It backed down only under intense political pressure. So the decision to try one of the most important crimes in American history before a military commission was made for reasons of politics, not justice.

The Pentagon's military commissions web site is headlined, "Fairness, Transparency, Justice." All three are dubious.

The rules overlook forests of unfairness for trees of trivia. For example, after the government held the 9/11 defendants incommunicado in CIA "black sites" for years, without access to lawyers, family or the Red Cross, and then imprisoned them without trial for five more years at Guantanamo, it seems ludicrous that it had to arraign them in an unusual Saturday session, in order to comply with a rule requiring their arraignment within 30 days of being charged.

Follow @CNNOpinion on Twitter and Facebook.com/cnnopinion

Transparency also took a hit on Saturday. During their long imprisonment, the 9/11 defendants say, they were repeatedly tortured or otherwise abused. Mohammed, for example, was subjected to "water board" torture 183 times, according to a former CIA official. Yet none of this could be mentioned at the arraignment. One defendant refused to enter the courtroom voluntarily and so was brought in shackled to a chair.

When his military defense counsel, Capt. Michael Schwartz, explained that his client was reacting to longstanding abuse, the audio feed to press observers in the U.S. was cut. Apparently Schwartz had dared to say the word "torture." The military judge admonished him not to cross over the line of what could be said in open court. So much for transparency.

Finally, and above all, justice will be cheated at this trial. For example, although the rules now prohibit admission of statements obtained by torture or by cruel, inhuman or degrading treatment, the rules still allow admission of evidence derived from statements made under torture, so long as a military judge concludes that admission is "consistent with the interests of justice."

It did not have to be this way. There are better ways to reconcile the competing demands of justice for 9/11 victims and their families, versus justice for defendants who have been detained and allegedly brutalized for years in violation of standards recognized by international law.

One way might have been to let the defendants pursue their torture claims through separate lawsuits against the Bush administration officials who authorized their alleged mistreatment. But U.S. courts have blocked these lawsuits on the ground that the officials enjoy immunity from such suits.

Another way might have been to refer the 9/11 prosecutions to an international criminal court whose judgments would have more credibility in the world in general, and in the Muslim world in particular. U.S. officials have raised objections to the International Criminal Court. But the ICC is not the only such court. The U.S. has supported the Special Court for Sierra Leone, where former Liberian tyrant Charles Taylor was recently convicted, and the Special Tribunal for Lebanon, which has indicted individuals for the assassination in 2005 of former Lebanese Prime Minister Rafik Hariri.

Granted, every approach has its drawbacks. But the U.S. has settled on the worst alternative of all: military trials. As a former lawyer in the Navy Judge Advocate General's Corps, I know that military trials -- of American service personnel -- can be scrupulously fair. However, as the common law maxim states, justice must not only be done, it must be seen to be done. In the long view of history, and around the world, justice will not be seen to be done if convictions and death sentences are imposed on our alleged enemies by a U.S. military court.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Douglass Cassel.

ADVERTISEMENT
Part of complete coverage on
updated 9:49 AM EDT, Thu July 24, 2014
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
updated 6:05 PM EDT, Wed July 23, 2014
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
updated 7:42 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 2:53 PM EDT, Thu July 24, 2014
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
updated 9:17 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 12:37 PM EDT, Thu July 24, 2014
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
updated 10:13 AM EDT, Thu July 24, 2014
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
updated 12:30 PM EDT, Wed July 23, 2014
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
updated 8:05 AM EDT, Wed July 23, 2014
LZ Granderson says Ronald Reagan went horseback riding and took a vacation after the Korean Air Crash of 1983. So why does the GOP keep airbrushing history to bash Obama?
updated 9:38 AM EDT, Wed July 23, 2014
Aaron Miller says Kerry needs the cooperation of Hamas, Israel, Egypt and others if he is to succeed in his peacemaking efforts
updated 8:51 AM EDT, Wed July 23, 2014
Errol Louis says the tragic death of Eric Garner at the hands of the NYPD has its roots in the "broken windows" police strategy from the crime-ridden '80s.
updated 10:08 AM EDT, Wed July 23, 2014
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
updated 7:27 AM EDT, Wed July 23, 2014
Ruben Navarrette says Texas Gov. Rick Perry is right to immediately send 1,000 National Guard troops to the U.S.-Mexico border in response to the border children crisis.
updated 9:56 AM EDT, Tue July 22, 2014
Ukraine's president says the downing of MH17 was a terrorist act, but Richard Barrett says it would be considered terrorism only if it was intentional
updated 4:15 PM EDT, Tue July 22, 2014
Robert McIntyre says the loophole that lets firms avoid taxes should be closed
updated 11:35 AM EDT, Tue July 22, 2014
Jeronimo Saldana and Malik Burnett say Gov. Perry's plan to send National Guard to the border won't solve the escalating immigration problem.
updated 1:42 PM EDT, Tue July 22, 2014
Sally Kohn: The world's fish and waters are polluted and under threat. Be very careful what fish you eat
updated 8:42 AM EDT, Tue July 22, 2014
Les Abend says threat information that pilots respond to is only as good as the intelligence from air traffic controllers. And none of it is a match for a radar-guided missile
updated 8:35 AM EDT, Mon July 21, 2014
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
updated 8:27 AM EDT, Mon July 21, 2014
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
updated 7:57 AM EDT, Mon July 21, 2014
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
updated 10:17 AM EDT, Mon July 21, 2014
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
updated 12:42 PM EDT, Fri July 18, 2014
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
updated 9:50 PM EDT, Fri July 18, 2014
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
updated 11:07 AM EDT, Fri July 18, 2014
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
updated 1:55 PM EDT, Sun July 20, 2014
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
updated 3:53 PM EDT, Mon July 21, 2014
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
updated 3:33 PM EDT, Fri July 18, 2014
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
updated 6:11 AM EDT, Fri July 18, 2014
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
updated 3:14 PM EDT, Thu July 17, 2014
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
updated 8:06 AM EDT, Thu July 17, 2014
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
updated 8:14 AM EDT, Thu July 17, 2014
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
updated 4:16 PM EDT, Thu July 17, 2014
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
updated 12:01 PM EDT, Fri July 18, 2014
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
updated 10:04 AM EDT, Fri July 18, 2014
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
updated 12:25 PM EDT, Thu July 24, 2014
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
updated 2:04 PM EDT, Wed July 16, 2014
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
updated 11:18 AM EDT, Thu July 17, 2014
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
updated 9:24 PM EDT, Wed July 16, 2014
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
updated 12:41 PM EDT, Wed July 16, 2014
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT