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 12:11 PM EDT, Fri August 29, 2014
Leon Aron says the U.S. and Europe can help get Russia out of Ukraine by helping Ukraine win its just war, sharing defense technologies and intelligence
updated 1:24 PM EDT, Fri August 29, 2014
Timothy Stanley the report on widespread child abuse in a British town reveals an institutional betrayal by police, social services and politicians. Negligent officials must face justice
updated 9:06 PM EDT, Fri August 29, 2014
Peter Bergen and David Sterman say a new video of an American suicide bomber shows how Turkey's militant networks are key to jihadists' movement into Syria and Iraq. Turkey must stem the flow
updated 11:16 AM EDT, Thu August 28, 2014
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
updated 10:34 AM EDT, Fri August 29, 2014
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
updated 10:32 AM EDT, Thu August 28, 2014
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
updated 10:43 PM EDT, Thu August 28, 2014
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
updated 9:40 AM EDT, Thu August 28, 2014
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
updated 9:30 AM EDT, Fri August 29, 2014
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
updated 2:49 PM EDT, Fri August 29, 2014
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
updated 6:42 PM EDT, Tue August 26, 2014
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
updated 9:21 AM EDT, Wed August 27, 2014
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
updated 9:19 AM EDT, Wed August 27, 2014
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
updated 7:35 PM EDT, Tue August 26, 2014
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
updated 7:26 AM EDT, Wed August 27, 2014
Jeff Yang says the tech sector's diversity numbers are embarrassing and the big players need to do more.
updated 4:53 PM EDT, Tue August 26, 2014
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
updated 4:19 PM EDT, Tue August 26, 2014
Ed Bark says in this Emmy year, broadcasters CBS, ABC and PBS can all say they matched or exceeded HBO. These days that's no small feat
updated 3:19 PM EDT, Tue August 26, 2014
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
updated 11:58 AM EDT, Tue August 26, 2014
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
updated 3:50 PM EDT, Mon August 25, 2014
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
updated 4:52 PM EDT, Mon August 25, 2014
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
updated 12:29 PM EDT, Mon August 25, 2014
Peter Bergen and Emily Schneider say a YouTube video apparently posted by ISIS seems to show that the group has a surveillance drone, highlighting a new reality: Terrorist groups have technology once only used by states
updated 5:04 PM EDT, Mon August 25, 2014
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
updated 5:45 PM EDT, Fri August 22, 2014
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
updated 1:27 PM EDT, Tue August 26, 2014
John Bare says the Ice Bucket Challenge signals a new kind of activism and peer-to-peer fund-raising.
updated 8:31 AM EDT, Fri August 22, 2014
James Dawes says calling ISIS evil over and over again could very well make it harder to stop them.
updated 9:05 PM EDT, Sat August 23, 2014
As the inquiry into the shooting of Michael Brown continues, critics question the prosecutor's impartiality.
updated 6:47 PM EDT, Fri August 22, 2014
Newt Gingrich says it's troubling that a vicious group like ISIS can recruit so many young men from Britain.
updated 10:50 AM EDT, Thu August 21, 2014
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
updated 7:03 AM EDT, Fri August 22, 2014
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
updated 8:23 AM EDT, Fri August 22, 2014
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
updated 3:51 PM EDT, Wed August 20, 2014
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
updated 1:42 PM EDT, Thu August 21, 2014
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
updated 11:38 AM EDT, Thu August 21, 2014
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
updated 8:00 AM EDT, Thu August 21, 2014
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
updated 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT