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The 9/11 Trial: Torturing Justice

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The last time the U.S. government wheeled out Khalid Sheikh Mohammed and the four other men accused of initiating and being involved in the terrorist attacks on September 11, 2001, was in May this year, and, as is usual, the mainstream media turned out in force. That occasion was the formal arraignment of the men and it was tempestuous, as the defendants largely refused to cooperate. This week, as pre-trial hearings resumed, the mainstream media also returned in force for proceedings that focused primarily on issues of secrecy and transparency.

The rest of the time, sad to say, most of the mainstream media do not care much about Guantánamo, even though the prison remains a national disgrace. It is a place where, beyond the handful of men accused of genuine involvement with terrorism, more than half of the remaining 166 prisoners have been cleared for release but are still held, and 46 others are regarded as too dangerous to be released, even though insufficient evidence exists to put them on trial.

In other contexts, that would mean that the so-called evidence is actually hearsay or innuendo — and in fact even the most cursory investigation by serious reporters would reveal that most of what passes for evidence consists of dubious statements made by the prisoners about themselves and their fellow prisoners as a result of torture, other forms of abuse, and bribery.

In Guantánamo, however, even the death of a cleared prisoner six years after he was first cleared for release, as happened in September to Adnan Latif, a Yemeni, is of flickering interest only. It is merely a part of an endlessly churning news cycle, and not an indictment of two successive administrations, Congress, and much of the judiciary, who have been content to detain Yemenis solely on the basis of their nationality because of fears about the security situation in their homeland,

Approving Yemenis for release and then not releasing them makes a mockery of all notions of justice and fairness and enshrines “guilt by nationality” as a basis for detention, but that appears not to be of sufficient interest for the mainstream media to cover.

Instead, proceedings in the long, drawn-out process of establishing the trial of Khalid Sheikh Mohammed and the four others accused with him — Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Walid bin Attash, and Mustafa al-Hawsawi — are apparently the only guarantor of sustained mainstream media attention.

What awaits reporters each time, however, is a strange ballet, in which lawyers for the men consistently argue that the trial process is rigged, because the government is desperate to prevent any of the men from discussing what happened to them during the long years in which they were transported around a succession of secret CIA prisons and subjected to torture; and prosecutors and the judge largely confirm those arguments.

Remember — as the mainstream media might forget to mention it — that these men, and nine others, arrived in Guantánamo from CIA custody more than six years ago in September 2006, and yet, since that time, the only words they have uttered that have been allowed to be revealed to the public are some of their statements made during their military tribunals in spring 2007, and whatever comments they have managed to utter during the handful of pre-trial hearings since they were first charged in February 2008.

The censorship of every word uttered between any of the “high-value detainees” and their lawyers over the last six years can have only one purpose: to try to ensure that details of the Bush administration’s torture program are not aired in public, even though, of course, it is impossible to see how any of the men can receive a fair trial when every detail of how they were treated is regarded by the authorities — by the government itself — as being off-limits.

The truth, essentially, is that it is impossible for Khalid Sheikh Mohammed and the other four men — or any of America’s other torture victims — to receive a fair trial, because the use of torture automatically precludes that possibility. It is one of the many compelling reasons that torture should never be used, along with the fact that it is illegal under U.S. law, and those who authorized its use should be prosecuted. Moreover, it is morally corrosive, counterproductive, and ineffective, because the only way of finding out whether what the torture victim is saying is true is to follow every lead, wasting huge amounts of manpower, as intelligence agents explained in the dying days of the Bush administration.

In dealing with torture and secrecy at this week’s proceedings in Guantánamo, the judge, Army Col. James Pohl, is being urged to approve a protective order that is designed to prevent any of the defendants from revealing classified information during their planned trial. Using a 40-second delay during proceedings can prevent all spectators who are not directly connected to the trial, and who are made to listen to an audio feed from behind soundproof glass, from hearing classified information about the CIA’s torture program.

The ACLU, along with a coalition of 14 media organizations, is challenging the protective order, as Hina Shamsi, an attorney with the ACLU, explained. “What we are challenging is the censorship of the defendants’ testimony based on their personal knowledge of the government’s torture and detention of them,” she said, describing it as “overly broad” because it would “classify the defendants’ own knowledge, thoughts, and experience. It’s a truly extraordinary and chilling proposal that the government is asking the court to accept,” she told the Associated Press in an interview.

As AFP (Agence France-Presse) reported, she also “stressed that the court has to prove that the 40-second delay abides by the First Amendment of the U.S. Constitution, which protects freedom of speech and the press.” “We don’t think they can meet that requirement because of the fact that it is publicly known how the defendants were tortured and where they were held abroad. The government has no legitimate basis to seek to prevent the public from hearing the defendants’ testimony about torture and detention.”

In court papers, the AP explained, prosecutors have tried to argue that the 9/11trial “requires additional security because the accused have personal knowledge of classified information such as interrogation techniques and knowledge about which other countries provided assistance in their capture.” That explanation, however, skirts around the awkward truth that the defendants might also want to reveal what was done to them to coerce them into making false statements — of the kind that litter the classified U.S. military files released last year by WikiLeaks, for example.

The men’s lawyers repeatedly point out that their clients’ treatment “will be used to form the basis of their defense but the proposed protective order limits their ability to make that case in court and in public advocacy on behalf of their clients,” the AP reported. Army Capt. Jason Wright, one of Khalid Sheikh Mohammed’s Pentagon-appointed lawyers, described the protective order as “a way in which the government can hide what it did to these men during the period of detention by the CIA.” He added, “I think we need to bring the truth to the light of day on these issues.”

James Connell, a civilian lawyer for Ali Abd al-Aziz Ali, told the AFP, “One of the major issues that will be decided is whether the U.S. Constitution, which governs all cases in the U.S., also applies to Guantánamo Bay, or whether Guantánamo Bay is a sort of legal black hole as it’s been described.”

James Harrington, an attorney for Ramzi bin al-Shibh, explained more about the blanket gag, pointing out that “there’s a presumptive classification about everything our clients say to us, even the most inaccurate things.” He said all documents and communication between lawyers and their clients are subject to censorship. He described that as “a clear violation of our rights as lawyers,” insisting that the lawyers should be “able to talk about things without interference, or Big Brother looking over your shoulder at everything you do.”

That is certainly accurate, although on Wednesday, as so often before, it was Khalid Sheikh Mohammed who temporarily slipped his leash, getting a brief opportunity to mention torture and to show up the military commissions for the farce that they are.

Daphne Eviatar of Human Rights First said that on Wednesday afternoon Mohammed “spoke out to admonish the judge and lawyers in the military commissions that the term ‘national security’ is relative and that the United States has killed many people in its name.”

“You have to keep in mind that the government is using the definition of national security as it chooses,” he said. “Everyone uses this expression as he chooses.”

The farce became apparent through Judge Pohl’s response. Turning to the defense lawyers, he said, “Do you know what he wants to say?” The lawyers didn’t know. Through a translator, Mohammed then delivered his statement:

When the government feels sad for the killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government who is represented by General Martins [the chief prosecutor] and others who have killed thousands of people. Millions. This definition is a resilient definition. Every dictator can put on this definition as the shoes that he uses to step on every person in this world, every law, and every constitution.Many can kill people under the name of national security. And to torture people under the name of national security. And detain their children under the name of national security. I don’t want to be long but I can say that the president can take someone and throw him in the sea in the name of national security. And so well he can also legislate the killings, assassinations, under the name of national security, for American citizens. My only advice to you that you do not get affected by the crocodile tears. Because your blood is not made of gold and ours made of water. We are all human beings. Thank you.

Afterwards, Colonel Pohl, “looking a little embarrassed,” as Daphne Eviatar put it, stated, “This is a one-time occurrence. If the accused wish to represent themselves, that’s one issue. But no matter how heartfelt, I’m not going to entertain personal comments from the accused about how things are going. He has a right to have that opinion, he does not have the right to voice that opinion, or any accused, to give his personal observations and comments.”

Unfortunately for Colonel Pohl, those comments came too late, as Mohammed achieved his aim, making the military commission system look like the work of amateurs, and managing briefly to mention torture, while also exposing America’s double standards. Given that Mohammed could have been brought to justice ten years ago if torture had not become official U.S. policy, that only shows what a moral quagmire the U.S. government is in when it comes to successfully prosecuting those alleged to be responsible for9/11.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at www.andyworthington.co.uk.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.