by Andrew P. Napolitano, Ron Paul Institute:
In the months following the attacks of 9/11, the government laid the blame for orchestrating them on Osama bin Ladin. Then, after it murdered bin Ladin, the government decided that the true mastermind was Khalid Sheikh Mohammed.
By the time of bin Ladin’s death, Mohammed had already been tortured by CIA agents for three years at various black sites and charged with conspiracy to commit mass murder, to be tried before an American military tribunal at Guantanamo Bay, Cuba.
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Mohammed and four other alleged conspirators have been awaiting trial since their arrivals at Gitmo in 2006. Since then, numerous government military and civilian prosecutors, as well as numerous military judges, have rotated into and out of the case. Two weeks ago, the government and the defendants agreed to a guilty plea in return for life in prison at Gitmo. Then, last week, the Department of Defense abruptly changed its mind and rescinded its approval of the guilty pleas.
Here is the backstory.
The concept of military tribunals for the perpetrators of the 9/11 attacks was born in the administration of President George W. Bush, who argued that the attacks, though conducted by civilians on civilians, were of military magnitude and thus warranted a military response. Throughout the entire 22-year existence of the U.S. military prison at Gitmo, no one has been tried for causing or carrying out the crimes of 9/11. The government tried only one person for crimes related to 9/11. That was Zacarias Moussaoui, who pleaded guilty in federal court in Virginia to conspiracy for being the 20th hijacker and then was tried in a penalty phase trial where the jury chose life in prison.
Bush’s rationale not only brought us the fruitless and destructive wars in Afghanistan and Iraq; it also brought a host of legal problems unforeseen by Bush and his revenge-over-justice colleagues. The first legal issue was conspiracy. Since Mohammed did not carry out the attacks, he could only be charged with planning them. But conspiracy is not a war crime, and thus no military tribunal could hear the case. So Congress came up with a historic first — a military tribunal that would try civilian crimes.
The next issue was where to try Mohammed and his colleagues. President Barack Obama wanted to close Gitmo, which costs $540 million annually, and try Mohammed and the others in federal courts. This would have been consistent with federal law and the U.S. Constitution. But Republicans in Congress viewed Mohammed as too dangerous to bring onto U.S. soil, and so Congress enacted legislation that prohibits the removal of Mohammed and the others to the U.S. for any purpose.
The prohibition on removal means that any life terms would need to be spent at Gitmo. It also means that there would be a legal obstacle to the execution of a death sentence, as Gitmo is not equipped to execute anyone.
Most troubling, however, is the government’s problem of how to address the issue of torture. Bush believed that military men on military juries would neither cringe at torture nor hesitate to impose a death sentence. Yet, when defendants at Gitmo, in non-9/11-related cases, described the torture that CIA agents and military officials had inflicted upon them, military jurors were repulsed at what they heard and recommended clemency even for those who caused deaths.
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