Five 9/11 prisoners are scheduled for a pre-trial hearing on Sunday, January 27 in Guantánamo, Cuba. Khalid Sheikh Mohammed, the self-proclaimed organizer of the September 11 terrorist attacks is among the accused, who also include Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, Walid Muhammad Salih Mubarak Bin Attash, and Ramzi Binalshibh. All are suspected terrorist coordinators of the al-Qa’eda linked 9/11 attacks, and are accused of recruiting, training, and funding.
Considerable controversy has surrounded the prisoners since their capture in 2002 and 2003 by the CIA and their detainment at a Guantánamo detention camp since 2006. According to a press release from the U.S. Department of Defense, the five prisoners “were charged during their arraignment in May with terrorism, conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft.” Since the arraignment in May, there have been significant concerns over how these men should be treated and tried in the United States.
Pre-trial hearings began in October 2012, but were sporadic and delayed as concerns emerged over the sharing of classified information in hearings, the trying of non-US citizens outside of the regular court system, and debates over conspiracy charges emerged.
What defines a ‘prisoner’ according to international law?
Jeffrey Addicott, Distinguished Professor of Law and Director for the Center of Terrorism Law at St. Mary’s University of Law, said that “it is the application of the provisions of the law of war to al-Qa’eda enemy combatants that is most often challenged as “illegal” by critics.” This is because a central issue is the question of whether “The War on Terror” is an actual war, or is a metaphor, like “the war on drugs,” explained Addicott.
Furthermore, these five men are not considered prisoners of war (POWs), but rather they have been labeled as “unlawful enemy combatants” (UEC) by the United States, because the five men are suspected non-state terrorist actors. This term was created by Congress, but is not found in the Geneva Conventions, the international law outlining proper treatment of non-combatants and POWs during war. Labeling the prisoners as UEC has raised suspicions that this allows the U.S. to treat the prisoners in whatever fashion they choose, not complying with international law. Despite this, Time reports that the U.S. has pledged that, “all prisoners in U.S. military custody will henceforth be covered by the Geneva Convention.”
Furthermore, although not protected as prisoners of war, the prisoners still fall among article three of the Convention, which addresses hors de combat, soldiers who have ceased to be active due to sickness or detainment. This requires that they be treated humanely, explains Stephen Vladeck, a professor at American University College of Law.
Because US military operations, including, Operation Enduring Freedom, Operation Iraqi Freedom, and conflicts in Pakistan fall under the term “War on Terror”, the military commissions concerned with alleged 9/11 terrorists follow laws of war. The laws of war are international standards, such as the Geneva Conventions and the Hague Conference, that regulate the behaviour of states during war. Yet while the United States recognizes conspiracy without act as a crime, other countries do not, which complicates and possibly contradicts international protocol. This means that theoretically, a suspect in U.S. custody could be charged for a crime twice,once for conspiracy and once for the criminal act itself.
In 2001, conspiracy was not considered a crime of war, and thus would not be applicable in military commission. However, Reuters reports, “The defendants are being tried under a law passed by the U.S. Congress in 2006 and revised in 2009, which designate[s] conspiracy and providing material support for terrorism as war crimes.”
Conspiracy, arguing confidentiality and confessions
Recently, conspiracy charges in the U.S. 9/11 hearings have been under serious debate. According to Reuters, Prosecutor Brigadier General Mark Martins has recommended that the conspiracy charges be dropped, as doing so “would remove an issue that could otherwise generate uncertainty and delay resulting from prolonged litigation in the ongoing capital prosecution.”
However, on January 18, the Pentagon decided that conspiracy charges would not be dropped. While the crimes were committed in 2001, the five prisoners are being tried under more recent laws, soliciting contention over if laws should be retroactively applied.
During the proceedings, which lottery chosen family members of 9/11 victims attended, the discussion of torture was forbidden under Judge Army Colonel James Pohl’s conclusion that the subject was not relevant to the hearings. Yet this is problematic because according to the United Nations Convention Against Torture, which the United States is a signatory to, torture is illegal and confessions resulting from torture are considered inadmissible. Thus, questions arise over why torture would be implemented in the first place. However, post-9/11 America experienced a surging call for justice, which argued the sentiment that torture was necessary. The decision prohibiting talk of torture led to disagreements, between prosecutors and defendants, ultimately provoking questions of the legitimacy of military commissions.
Der Spiegel reports that Mohammed’s civilian lawyer, David Nevin, argued against the ban on discussions of torture. “How can torture not play a role in the trial?” questioned Nevin.
Defendant Khalid Sheikh Mohammed spoke only once during the October 15, 2012 hearing, expressing, “I don’t think there is any justice in this court.”
Professor Sudha Setty, from Western New England University School of Law, has said that, “the ways in which the legal architecture has been constructed in the last decade have actively limited transparency and the ability to hold the government accountable for its actions,” referencing the fact that while some military members were disciplined for alleged torture, it did not extend higher to individuals who authorized and enabled these actions. Despite these concerns, Tung Yin, a professor of law at Lewis and Clark College of Law, explains that these military trials are only accepting uncoerced confessions or testimonies.
Yin further explains that in the civilian system, “confessions from torture are rendered invalid.” This rule is extending to these military hearings, as Judge Army Col. James Pohl, along with a Jury completely comprised of soldiers, has promised not to accept any “tainted” confessions, easing some concerns.
The civilian courts system or military commissions?
The difference between the legal civilian system and military trials has been a major issue involving the 9/11 prisoners. Military commissions are developed through U.S. laws and laws of war. According to the U.S. Military Commissions, “rules and procedures differ substantially from those used in courts-martial to try members of the U.S. armed forces” by implementing “more controversial provisions, such as the potential use of evidence against an accused which he has never seen.”
In the civil court, suspects have the right to a speedy trial, something which seems to be lacking in Guantánamo military commissions. Additionally, according to The Congressional Research Service, “the Military Commissions Act permits only aliens to be tried,” while Federal courts have had a history of trying and punishing both citizens and non-citizens alike.
According to Addicott, “the primary dilemma for our government rests in the fact that the law of war was written to address an armed conflict between nation-states, not an armed conflict between a nation-state and a non-state actor such as al-Qa’eda.” It is, however, also important to remember that these people are not labeled as prisoners of war, and are not treated as such. These prisoners are labeled as unlawful enemy combatants, which grants the U.S. the ability to “kill [them] on site, detain them, and try them for war crimes,” states Addicott.
Tung Yin further shares the opinion that, “military trials should be for war crimes…If we’re going to be prosecuting for civilian crimes, they should be in regular courts. When you try to mix the two, it can seem illegitimate.”
The past is the past. What will happen next?
A significant portion of these debates is concerned with conspiracy charges, the labeling of prisoners, and domestic detainment. Stephen Vladeck posits that concerns over domestic detention, “is a distraction.” He argues that some of the larger, harder questions deal with future prisoners and terrorist suspects. Since 2006, there have been no new detainees sent to Guantánamo, says Vladeck, insisting that whether Guantánamo is closed or not is not as important as what will happen “to the 161 guys still there,” and future suspects.
Vladeck maintains that going forward, “The much harder question is what do we do when we come across terrorist suspects outside the U.S.?”