Khalid Shaikh Mohammad among five to be arraigned on May 5

Rights activist say despite improvements in the military commission system, it remains fundamentally flawed

WASHINGTON: On May 5, Khalid Shaikh Mohammad, Ramzi bin al-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al Aziz Ali and Walid Bin Attash will appear before a military commission in Guantanamo Bay, to be arraigned. The prosecution will read out the charges against them, which primarily include conspiring, planning and helping execute the attacks in the United States on September 11, 2001.

This is not the first time they will appear before a judge at Guantanamo Bay. In 2008, the five appeared before a military commission hearing. However, when the Obama administration took office in 2009, they stopped all proceedings. The intention was to close the infamous detention facility within a year, but opposition from Congress and legal hurdles later, the facility remains open. The government also amended the Military Commissions Act, which had been implemented by the Bush administration.

In 2009, US Attorney General Eric Holder announced plans to try the 9/11 plotters in a court in New York. Cue public opposition and political pressure against the plan, and that too was dropped. The 9/11 five, including the alleged mastermind Khalid Shaikh Mohammad, will now be tried at Guantanamo Bay. The prosecution has asked that they be given the death penalty.

The question that remains though is how fair is a military commission system?

Congress has ruled that no evidence obtained by cruel and degrading treatment can be admitted into the court. Khalid Shaikh Mohammad, for instance, was waterboarded 183 times.

Andrea J. Prasow, the Senior Counterterrorism Counsel and Advocate, US Program at Human Rights Watch, says that while the military commission system has improved over the years, it remains fundamentally flawed. Highlighting key issues, she said “first, Guantanamo is still a symbol of lawlessness and this trial will be watched around the world. So people far from the US will be watching the trial, seeing it take place in Guantanamo and thinking that there’s just something fundamentally unfair. These people were held illegally, they disappeared, held in secret prisons and tortured and now are being prosecuted in this lawless zone in Guantanamo.”

Extolling the challenges, she said that “beyond that, even though there is an absolute bar on admitting evidence obtained by torture, there are ways that such evidence can get in. for example the rules explicitly allow derivative evidence. So evidence that comes one step removed from evidence obtained by torture. Plus there are rules that permit essentially secret evidence to be admitted ands the evidence is so secret that the defense and possibly even the prosecutors wont even know that it was obtained by torture or other ill-treatment.”

Charles Stimson, a Deputy Assistant Defense Secretary for Detainee Affairs during the Bush administration, says that detainees can get justice under the military commission system at Guantanamo Bay. “Military commissions have existed throughout US history,” he says. “I’m very confident that the detainees there will and are being represented by the best defense lawyers our country has produced.” Stimson adds that the judges in the commission are fair. Stimson says he has also compared the rules of the current system to international ones, and believes the system in place is fair to the defendant.

Closing Guantanamo Bay

Human rights organisations have repeatedly called on the Obama Administration to close Guantanamo Bay. Andrea Prasow says that while Congress has made it difficult to close Guantanamo Bay, it is not impossible. “There are 89 men in Guantanamo who have been cleared for transfer by the Obama Administration. And using a provision of the Defense Authorisation Act, they can be transferred. They can be released to their home countries. Or if they cant go back to their home countries because they might face torture they can be resettled. I think it’s shocking that the administration hasn’t moved forward on this.”

Stimson says that the Obama Administration could have closed Guantanamo Bay in the first six months of office, when they controlled both the House and Senate in the Congress, and he says it is unlikely that they will have a perfect set of circumstances soon where that could happen. “I think Guantanamo Bay is just a zip code, and if you could wave a wand or move them to, for example Illinois magically, there will be some number of detainees who will never see freedom again because of the threat that they pose. And so whether it’s Guantanamo or somewhere else, some number of detainees will be detained, probably for the rest of their lives.”  Stimson cites the example of the Yemeni detainees, believed to be the majority at Guantanamo, who cannot be currently sent back to their home country, but says that could change in the future.