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Published: Sunday, 6/17/2012

COMMENTARY

Flawed justice for terror suspects

BY BENJAMIN G. DAVIS

On Sept. 11, 2001, I lost a friend from high school who had gone to the World Trade Center in New York City that day to make a speech. I cannot imagine the depth of the pain suffered by the families of the 9/11 victims.

I share their frustration with the delays in bringing the alleged perpetrators of the attacks to justice. Most recently, those delays have afflicted the military commission at Guantanomo Bay, Cuba, that is trying the reputed mastermind of the attacks, Khalid Sheikh Mohammed, and four associates for war crimes.

Both the Obama and George W. Bush administrations and Congress bear much of the blame for these delays. Starting just five days after 9/11, President Bush made a fateful departure from American values and law. He created secret prisons and a torture regime of "black" interrogation sites.

He ordered suspects to be held outside the law around the world and established military commissions that were structured to guarantee convictions, even based on evidence from torture. He led us into a war with Iraq on false pretenses. These matters diverted vital time and energy, and used up precious human and other resources.

Both parties in Congress abdicated their responsibility to deliberate reasonably about these issues. Lawmakers who sought re-election feared that voters would see them as weak on terrorism.

In 2006, the U.S. Supreme Court rejected Mr. Bush's plan for military commissions and affirmed that the Geneva Conventions applied to the "war on terror." The White House and Congress quickly cobbled together a flawed new commission process that did not rely either on civilian courts or military courts-martial.

Two years later, the high court took detainees at Guantanamo out of the constitutional and legal limbo into which they had been deliberately thrust while in U.S. custody and control. Justices ruled that Guantanamo inmates had the constitutional right to challenge their detentions in court.

When President Obama took office in 2009, it appeared that at least minimum standards of justice would guide these proceedings. But the Obama Administration caved in to pressure from Congress and decided not to try the detainees in civilian federal courts, as hundreds of other terrorists had been tried.

Instead, a third version of military commissions went into effect. These commissions are deeply flawed for many reasons, such as unlawful influence by civilian and military leaders.

Reporting on the military commission trying Khalid Sheikh Mohammed and his alleged accomplices must be of the highest caliber. Defendants' lawyers appear indifferent about soliciting public sympathy for their clients, but will bring forward every aspect of the torture reportedly done to these detainees in Americans' name.

Lawyers seek to compel the testimony of key alleged protagonists of torture, such as former CIA officials, before the military commissions. They want to win freedom for their clients, of course, but also to highlight the basic, fatal flaws of the military commission system.

As the prosecution of this death-penalty case proceeds, the military judge and lawyers will no doubt play their roles with great loyalty to the best traditions of our legal system. But they must fly without instruments, because inevitable doubts will remain about the extent to which normal constitutional and legal precedents from civilian courts and courts-martial apply to the commission process.

Justice is neither a euphemism nor a synonym for vengeance. Americans should not consider evidence of torture at the trial through the eyes of a lynch mob, but rather should display a lucid understanding of what fateful decisions by Presidents Bush and Obama and by Congress have cost us and will cost us in the future. The judge must not shield official wrongdoing from Americans.

Former Supreme Court Justice Robert Jackson, the chief prosecutor at the Nazi war crimes trials at Nuremberg, said that you cannot have judicial forms without judicial norms. A proper, accountable judicial process must allow the defendant, by marshaling appropriate evidence, the possibility of acquittal.

The quality of justice at the military tribunals will be tested not by their convictions, but by their acquittals.

Benjamin G. Davis is an associate professor at the University of Toledo College of Law.



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