Tortured logic of terror trials will not be going away

By Robyn Blumner, Times Columnist
Published February 17, 2008

Presumptive Republican presidential nominee John McCain has just been given a cudgel, gift-wrapped by the Bush administration, to thump his Democratic rival.

For years the six suspected 9/11 conspirators have been in the custody of the CIA and military, held without charge. Yet now, just as the 2008 presidential race heats up, capital charges have been filed against the men, with a military trial to follow.

How convenient that public attention will be redirected to the actions of these alleged mass murderers over the coming months, giving fear-mongering - one of the Republican winning strategies - a boost at just the right moment.

These high-profile trials at Guantanamo will use a procedure that has yet to be successfully tested beyond the plea bargain of Australian David Hicks - now a free man. No matter. Next up are the men accused of planning the greatest crime in American history, including the alleged self-described mastermind of 9/11 Khalid Sheik Mohammed, the alleged 20th hijacker Mohammed al-Qahtani, and four men accused of being logistical coordinators.

The splashy coverage that is sure to follow will remind us of why we still need to be very scared.

Yes, I want the perpetrators of 9/11 to be brought to justice, but a trial should have occurred years ago. Moreover, "justice" is not, by any stretch, what the administration is planning. We will never really know if there is a valid case against these six since they won't be tried by a process intended to get at the truth.

They will be tried under the Military Commissions Act of 2006 - a measure that Congress should be ashamed of passing, and of which McCain was a principal cheerleader (McCain also voted Wednesday against a bill to rein in prisoner abuses by the CIA, abandoning his former principled stance.).

In addition to stripping detainees of their habeas corpus rights, the MCA establishes a highly flawed tribunal system that largely mirrors the one President Bush had unilaterally created that was struck down by the U.S. Supreme Court.

Congress could have addressed the defects in Bush's tribunals by establishing a trial procedure that would show the world that America is once again standing for its stated principles. But instead, lawmakers chose to codify a system that will be viewed as little more than show trials with foregone guilty verdicts. It is so flawed that a defendant can be denied classified evidence that may help exonerate him.

I never thought I'd live in a country that condoned abusive interrogation. Now, I also live in a country that will allow evidence beaten out of someone into a trial for a man's life.

The disgrace of it all is impossible to measure.

While the commission rules bar evidence obtained through torture, evidence obtained through coercion is explicitly allowed, as long as it is deemed "reliable" by a military judge. Also allowed in is hearsay evidence, second- or third-hand testimony the source of which cannot be cross-examined by the defense.

Under our criminal law, hearsay evidence is mostly barred and coerced testimony is absolutely barred because it is inherently unreliable. Prisoners will say anything to stop the abuse.

The CIA has now confirmed that Khalid Sheik Mohammed had been waterboarded for information; and we know a great deal about the interrogations of Mohammed al-Qahtani because Time magazine made public a time line of his interrogation from mid November 2002 to early January 2003. During this time, al-Qahtani was regularly denied sleep, forced to hold painful positions for long periods, held in cold conditions and subject to loud music, among other abuses.

Al-Qahtani later recanted the "evidence" he had offered against 30 or so fellow Guantanamo prisoners, according to Time. When he was finally allowed to talk with an attorney, al-Qahtani reportedly described how "he could not endure the months of isolation, torture and abuse, during which he was nearly killed, before making false statements to please his interrogators."

The government is desperately trying to use "clean teams" of interrogators to regather evidence without the use of coercion, but you can't undo this kind of abuse. It taints whatever is to come.

And the final joke on due process is that even if one of these defendants were miraculously found not guilty, he still could be held indefinitely as an enemy combatant.

Sadly for our nation, the intellectual arguments against these tribunals will resonate internationally, but here in the United States they will prove to be less compelling than the sight of these terror suspects getting their due. Both Barack Obama and Hillary Clinton courageously opposed the MCA because it did such harm to America's fundamental legal principles. Yet you can count on these trials and their votes being used to unfairly paint them as soft on terrorism. Just another reason why the timing of all this for McCain is so very convenient.