Detroit Hosted A Terror Trial – and Survived

Hinkle: Underwear Bomber Proves Obama Was Right 

By: A. BARTON HINKLE 
Published: February 21, 2012 
Courtesy Of "The Richmond Times Dispatch"

Something remarkable didn't happen last week: Nobody blew up Detroit.

This is a stunning development. It is stunning because Detroit is the city where, on Thursday, a federal judge sentenced Umar Farouk Abdulmutallab to life behind bars.

Abdulmutallab is the infamous Underwear Bomber — the man who tried to blow up Northwest Airlines Flight 253 on Christmas Day in 2009 in a suicide mission for al-Qaida. Four months ago he pleaded guilty to the charges. In civilian court, in Detroit.

Which, last time anyone checked, is still standing.

This is not what was supposed to happen, if you will recall. Three years ago, a lot of people — Republicans and conservatives, mostly — were pulling their hair out in (pardon the term) sheer terror at the very thought of trying terrorist suspects in civilian court.

The Obama administration had proposed doing just that with the detainees being held at the military facility at Guantanamo Bay, Cuba. It was going to put 9/11 mastermind Khalid Sheikh Mohammad on trial in New York. Other terrorist suspects would be tried in Washington. Pending trial, some of them were to have been held in custody here in Virginia.

Conservatives went berserk. Virginia Reps. Eric Cantor, Frank Wolf and Randy Forbes strenuously opposed the idea. As this newspaper reported at the time, "The Republicans raised fears that the presence of detainees could make domestic jails targets of international terrorists and create local security risks in cases of escape. The lawmakers also were concerned that terrorists would try to recruit gang members."

Forbes introduced legislation to block federal funds for any transfer of prisoners from Guanatanamo stateside. Bob McDonnell, then running for governor, issued a press release supporting the measure. The United States District Courthouse in Alexandria, he noted, "is located in the city, only 190 feet from a new Westin Hotel, and close to apartment buildings, shops and restaurants. The U.S. Patent and Trademark Office, with 7,000 employees, is only a block away." The clear implication: Their lives would be in danger.

Former Bush administration Attorney General Michael Mukasey agreed that any terrorist suspect's mere "presence would generate serious security concerns for any person or place associated with their prosecution or confinement."

Ditto columnist Charles Krauthammer, who fretted that "any such trial will be a security nightmare and a terror threat to New York." What better propaganda, he asked, "than blowing up the entire courtroom, making KSM a martyr and making the judge, jury and spectators into fresh victims?"

Not only that: Granting KSM a civilian trial offered him "the greatest propaganda platform imaginable — a civilian trial in the media capital of the world — from which to proclaim the glory of jihad and the criminality of infidel America." In other words, it would be a grand recruitment opportunity for al-Qaida.

Many Americans shared such concerns. According to one 2009 poll, "nearly two out of every three respondents — 61 percent — said they think it is likely that New York City will experience a terrorist attack, either before, during, or immediately after the terrorist trials."

The pressure proved too great. On the same day Obama announced his bid for re-election, his administration caved on civilian trials for the prisoners at Gitmo, who would get military tribunals instead.

Abdulmutallab's sentencing makes the frenzied panic of three years ago look rather silly. Swarthy Middle Eastern commandos did not spring Abdulmutallab in a daring nighttime raid. He did not tunnel his way out of jail with a plastic spoon, or incinerate Grosse Pointe with a homemade nuke. He made a few remarks in court, but referring to his undies as a "blessed weapon" and his life sentence as a "victory" does not seem to have inspired legions of imitators.

Abdulmutallab will spend the rest of his days rotting in an isolation cell at a supermax prison in Colorado. But he won't be entirely alone: The Alcatraz of the Rockies is home to Richard Reid, the shoe bomber; Ted Kaczynski, the Unabomber; Ramzi Yousef, who helped bomb the World Trade Center in 1993; and Terry Nichols, who helped Timothy McVeigh bomb the Murrah Federal Building in Oklahoma City. It also holds Ali Salah al-Marri, an al-Qaida sleeper agent, and Jose Padilla, the dirty bomber.

All those terrorists were tried in civilian court without incident, too. Ramzi Yousef was tried in New York. Most of those just named were tried and sentenced well before the Obama administration announced plans to close Guantanamo. Unlike his conservative critics, the president demonstrated some faith in the ability and dedication of the nation's courts, security guards, prison staff and counterterrorist operatives.

And his critics? All they demonstrated is that pandering to public fear to score cheap political points can make you look like a fool.

Guantanamo’s System Of Injustice

Camp Delta, the military-run prison, at the Guantanamo Naval Base in Cuba  (Credit: AP)


The First Trial Of An Accused Terrorist Exposes The Flaws Of "Reformed" Military Commissions 

BY LAURA PITTER 
THURSDAY, JAN 19, 2012 1:14 PM EASTERN STANDARD TIME 
Courtesy Of "Salon Magazine"

Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, has lately appeared at bar association conferences promoting “reformed military commissions” at Guantanamo. Speaking to the New York City bar association on January 11, Martins said the military commissions were “comparable to federal courts in their incorporation of all of the fundamental guarantees of a fair and just trial demanded by our values.” Indeed, a new masthead on the military commission website, put up after Martins took over, reads: “Fairness, Transparency, Justice.”

Yet this week, behind thick bulletproof glass in a secure hangar-like courtroom at Guantanamo, I saw vast differences between the two systems. One notices first the physical – the few observers permitted to visit the isolated island base reach the courthouse through a maze of walkways secured by high dark-mesh fences, guards and double barbed wire on both sides. Instead of sitting in the courtroom, observers sit in an adjoining room, behind glass, and hear voices on 40-second delay to allow court security officers to cut off the audio should any classified information be uttered. In the dock this week was Abd al-Rahim al-Nashiri, a Saudi of Yemeni descent accused of planning and participating in the bombing of the destroyer, the USS Cole, on October 12, 2000. The attack killed 17 US servicemen and injured many more. With US service members killed a federal court clearly would have jurisdiction over the case, so the government must have some other reason for choosing a military commission.

Nashiri’s is the first death penalty case to move forward in the military commissions. The fact that it is just being heard now, nine years after he was apprehended, demonstrates one of the starkest differences between the military commissions and federal courts – the absence of any real right to a speedy trial.  This type of delay would never occur in federal court and greatly prejudices both sides, as memories fade and witnesses disappear.

Further, nearly every substantive issue litigated in Guantanamo this week would never have arisen in civilian court. For example, the defense asked the judge to order the military to stop reading mail marked attorney-client privileged. In a federal prison, while mail might be inspected for physical contraband, a warden wouldn’t read clearly marked legal mail to determine if it was truly a privileged communication.

The defense also sought permission from the judge alone to request funds for expert witnesses, a routine motion in federal court. But in the military commissions, the defense normally shares its request with the prosecution, potentially revealing its case theory and litigation strategy. Observers and reporters dozed during the hours of debate about whether defense email could be encrypted –- a seemingly dry issue until one realizes that request was being made because the Defense Department has been reading all the defense attorneys’ email.

The defense has still not received roughly 70,000 pages of documents deemed relevant and material to the defense. Much of the evidence in the case is classified. After his capture, Nashiri was held in a secret CIA “black site” for four years, and waterboarded — a form of mock execution by inducing near suffocation long considered torture under US and international law. He was also threatened with a gun and, later, with a revving power drill near his head while he was hooded but otherwise naked. Details of his torture, while available in the public domain, are largely treated as classified.

The classified nature of the evidence means the defense only gets summaries of parts the prosecution deems relevant and that the judge approves. A request by the defense to challenge the accuracy of the summaries was denied. But civilian judges recognize that the parties should be able to challenge summaries, and may do so with a motion to reconsider.

Despite the volume of documents, the prosecution pressed for trial to begin on March 3. That type of timeline is unheard of in federal court, especially in a death penalty case. The federal court case against 9/11 conspirator Zacarias Moussaoui took more than four years.   Richard Kammen, one of Nashiri’s defense attorneys, called the prosecution’s proposed schedule “a time line for secret justice, for expedient justice, for under-resourced defense justice, and for justice that is fundamentally unfair.” He asked for ten months to two years depending upon whether he gets the resources and access to documents he needs. Ultimately the judge did not fix a trial date but gave the defense only two months to read all the documents and file any motions to challenge their adequacy.

Even in the presentation of evidence, the military commissions have vastly different rules of evidence. Statements from the accused obtained by torture are prohibited. But evidence derived from other types of coercion may be admitted. In federal court, any evidence derived from coercion would be barred, absent a showing that it would have been discovered in another lawful way. Also, unlike in federal court or the US courts martial system, multiple levels of hearsay are admissible (like a memo reporting on a conversation), denying a defendant any genuine right to confront witnesses against him.

Given the stark differences on display this week, it was startling to hear Martins say after the proceedings that military commissions “like federal court and courts martial” provide a fair system of justice. The US does not need to use this fundamentally flawed military commission system. As Martins himself admits, and the Obama administration has acknowledged, detainees can be prosecuted in either system for virtually the same offenses.

Whether one agrees with the use of military commissions or not, Martins and the Obama administration should at least be honest about the differences: as demonstrated by the proceedings this week, fundamental procedural protections afforded defendants in federal courts simply do not exist in military commissions. And without comparable fairness and transparency, the promise of justice remains a big question mark.

Laura Pitter is counterterrorism advisor in Human Rights Watch’s US Program. More Laura Pitter

A cluster of provisions in the NDAA aims to keep the prison facilities at Guantánamo open indefinitely [EPA]


The National Defence Authorisation Act Continues The Onward March Of The 'War On Terror' Through The American Homeland. 

By Ramzi Kassem 
Ramzi Kassem is Associate Professor of Law at the City University of New York. 
Last Modified: 22 Dec 2011 06:57 
Courtesy Of "Al-Jazeera"

New York, NY - In an instructive coincidence, the passage of the National Defence Authorisation Act (NDAA) by the US Congress came on December 15, 2011, the same day as the official start of US forces' pullout from Iraq. 

One front in the US' post-9/11 conflicts closed overseas, as another front seemingly opened at home. Now awaiting President Barack Obama's signature, which will turn it into law, the NDAA would further entrench here at home some of the defining features of the United States' extraterritorial campaign against political violence by non-state actors, continuing the onward march of the so-called "war on terror" through the American homeland.

For years, my students, my colleagues and I have been dealing with the realities of indefinite military imprisonment without trial, and of trial before untested and unfair military commissions. But we deal with those issues in the context of our work on behalf of our many non-citizen clients imprisoned outside of the US, at Guantánamo Bay, Cuba, and at Bagram Air Force Base, Afghanistan.

Together, the NDAA's provisions keep Guantánamo open as a facility, while expanding within the US a set of practices and legal approaches that stem from the Guantánamo experiment. Of course, the Guantanamisation of the American justice-and carceral-system was already well underway. Since 9/11, lengthy and oppressive pre-trial detention conditions have become the norm in federal terrorism cases, along with draconian sentence enhancementsmeted out to convicts in such cases, and subsequent imprisonment under cruel Special Administrative Measures and in majority-Muslim Communications Management Units. But this legislation represents further, significant strides in that direction, and, notably, ones that are overtly military in character.

To be clear, the NDAA does not institute martial law for all in the US. But it would be foolish not to see that it lays a potential foundation for it in the future. Students of history, and those of us new Americans who have lived under military or militarised regimes - and that includes many Muslim Americans - will spot the kinship and recognise in this law some of the markers of authoritarian rule.

"... the NDAA does not institute martial law for all in the US. But it would be foolish not to see that it lays a potential foundation for it in the future."

The legislation is plagued by textbook examples of poor and dangerously ambiguous drafting. Messy legislative writing is risky because some unfortunate soul(s) will potentially have to languish in military prison for years while American courts sort out the matter. 

Nonetheless, in light of the confusion and fears that this legislation has elicited, particularly in American Muslim communities, I thought it worth attempting a clarification of the proposed law's contours, of what it adds to the landscape as opposed to that which it merely recycles, realising as well that, in so doing, some of the widespread concerns surrounding it would be bolstered, while others might be debunked.

Keeping Guantánamo Open

A cluster of provisions in the NDAA aims to keep the prison facilities at Guantánamo open indefinitely (sections 1023, 1026, 1027, and 1028, among others). This is but the latest iteration of a sustained and joint effort by Congressional Republicans and Democrats alike to normalise the existence of Guantánamo as a prison site and to make it difficult, if not impossible, for any president to shut it down.

These sections of the NDAA extend for another year the prohibition on the use of US Department of Defence funds towards the construction or refurbishing of facilities to house Guantánamo prisoners within the US, or for the transfer or release into the US of Guantánamo prisoners. The provisions also renew certification requirements making it virtually impossible to release anyone from the island prison without a federal court order.

Although the law would carve out a waiver to the certification requirements for the first time, counting on a US politician to exercise that option might be naïve given the climate and overheated rhetoric surrounding all things Guantanámo. An irony among many is that there were no such certification hurdles to drop human beings into the endless Guantánamo ordeal in the first place. These provisions poignantly underscore how the entire Guantánamo system is an absurd one-way ratchet.

Codifying The Law Of Guantánamo

While the NDAA provisions discussed above mostly recycle and modify extant law, other sections break new ground, expanding the Guantánamo paradigm within the US.

The first provision, section 1021, purports merely to reaffirm the status quo under the 2001 Authorisation for Use of Military Force. However, by codifying for the first time the interpretation given that law by two successive administrations and the federal courts, Congress has effectively reinforced the status quo, perhaps placing it beyond the reach of pending lawsuits challenging the prevailing interpretations.

Prior to the NDAA, federal statutes did not explicitly provide for indefinite military imprisonment without trial, and they did not extend such authority to cover anyone who provided "substantial support" (undefined in the law) to al-Qaeda, the Taliban, or "associated forces" (also left undefined). The courts may have held as much in the last decade, mostly in the context of Guantánamo litigation, but this would be the first statutory expression of such authority, and its reach remains at best unclear owing to the NDAA's characteristically deficient drafting.

The law's architects included language stating that it did not "limit or expand the authority of the President". But that is meagre consolation given this administration's expansive view of its own authority under the AUMF. After all, Obama believes he can lawfully order the extrajudicial execution of US citizens overseas, and even underage US citizensmight be deemed legitimate targets. Military imprisonment pales in comparison.

"Obama believes he can lawfully order the extrajudicial execution of US citizens overseas, and even underage US citizens might be deemed legitimate targets."

Moreover, it is unclear whether the detention authority this section spells out applies to US citizens, as long as they are not "captured or arrested in the United States". That remains an unsettled question under the cases in this country, and this provision could be enlisted in that ongoing legal battle.

The next provision, section 1022, is frightening in far less subtle fashion. It mandates military custody without trial, or with a trial before the untested and fundamentally flawed military commissions, for anyone who (1) is a part of al-Qaeda or of an associated force that acts in coordination with or under the direction of al-Qaeda, and (2) participated in planning or carrying out an attack or attempted attack "against the United States or its coalition partners".

Military Custody Without Trial

While the NDAA states that it does not require military custody of US citizens who are alleged to fit its description, the law could still be read to allow military custody of those citizens. In other words, the US government may not be obligated to throw its citizens in a military brig under this law, but it might still enjoy that option.

The NDAA also exempts from military custody "resident aliens" - or Green Card holders - if they are arrested "on the basis of conduct taking place within the United States". The upshot here is that military custody is mandatory under this law for all non-citizens who do not hold Green Cards, whether they are arrested within or outside of the US, as long as the US government alleges that they fit the law's criteria.

It is equally mandatory for Green Card holders, captured in or outside the US, if the government alleges that some of the culpable conduct took place outside of the US. Leaving aside momentarily its possible impact on citizens and focusing exclusively on how it affects non-citizens, it is worth noting that dozens of cases that were brought against non-citizens in the civilian system after 9/11, including, prominently, Umar Farouk Abdulmutallab, would have been routed to the military under this provision.

Proponents of the provision, on the left and rightof American politics, emphasise that it allows the President to waive these new military custody requirements on a case-by-case basis. One problem they overlook, of course, is that the provision makes military imprisonment without trial the norm in certain cases. Obama would have to defend any waiver as a deviation from that norm, and pay the price for it politically. As the Obama presidency illustrates all too poignantly thus far, that would not be a likely choice. Moreover, even assuming the current president somehow developed the fortitude he has lacked so far to take principled positions on these issues, what guarantees that subsequent White House occupants would follow course? Would a President Newt Gingrich refrain from relying on these provisions? Would President Hillary Clinton?

"While the NDAA states that it does not require military custody of US citizens who are alleged to fit its description, the law could still be read to allow military custody of those citizens."

At this juncture, it would border on the revisionist not to remind readers that indefinite detention of non-citizens in the US on mere suspicion of ties to terrorism is not unprecedented. Section 412 of the USA PATRIOT Act, hurriedly passed by Congress in the immediate wake of the attacks in 2001, unambiguously vests the Attorney General with that authority (which has not yet been employed). But under that scheme, a civilian official has to affirmatively exercise civilian discretion to place a non-citizen suspected of terrorism ties in indefinite-but still civilian-custody. Under the NDAA, the automatic default would be military imprisonment, and the civilian authorities would have to intervene with a waiver to interrupt that mechanism.

No One Wants The NDAA

Even from the utilitarian perspective so oddly popular with liberties advocates these days, the fallout is potentially dramatic. Foreign allies, for example, will hesitate to extradite suspects to the US because of the possibility they will face indefinite military custody without trial or trial before the untested and flawed military commissions. The new law would also constrain US officials in their efforts. Under section 1029, for instance, the US Attorney General cannot bring a federal prosecution against certain categories of defendants without consulting first with the heads of the military and intelligence apparatus. Almost cavalierly, the NDAA contributes to the subversion of civilian supremacy over the military, a longstanding hallmark of American political history and tradition, and a vital structural feature of any open and democratic society.

Some may wonder how legislation like the NDAA remains acceptable, how it is even still possible a full decade after 9/11. The question is particularly perplexing seeing as no one in the vast American security and intelligence apparatus asked for or wanted the NDAA. In fact, the NDAA counter-terrorism provisions were opposed outright by the president’s chief counter-terrorism adviser, the Secretary of Defence, the Director of National Intelligence, the Director of the Federal Bureau of Investigations, the Director of the Central Intelligence Agency and a host of other military and security officials. 

It seems that no one wants the NDAA, except the politicians who have staked their careers on a war the public might think has ended with the death of Osama bin Laden. At a time when the US economy teeters on the brink of collapse, those elected officials want to ensure they can continue to score cheap political points by stoking the fires of fear, paranoia and prejudice.

Further enabling such legislation, on a deeper level, is its tacit subtext. What is understood by many, but left mostly unspoken, is that these laws would apply only to the most unpopular and reviled minority in post-9/11 America: Muslims. Acknowledging the danger looming ahead, a large coalition of Muslim American groups wrote a letter last week to the White House, urging a presidential veto of the legislation. Alas, it now appears inevitable that Obama will sign the NDAA into law, perhaps with a signing statement, an official interpretation of the law that would only bind his administration, rather than take political risks in an election cycle by vetoing the law altogether.

In the infamous Korematsu case, where the US Supreme Court approved the internment of Japanese Americans during World War II, Justice Robert Jackson dissented, warning about the decision's potentially long-lasting reverberations in terms that ring equally true in our context today. Regardless of how long they are left unused, or how selectively they are applied at first, laws such as section 412 of the USA PATRIOT Act, and now the NDAA provisions, "[lie] about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need". While it may well be inescapable that the brunt of the NDAA will be borne initially by Muslims in the US, make no mistake: the threat in the long run is to the very nature of American government and to all who are subject to its authority.

Ramzi Kassem is Associate Professor of Law at the City University of New York. He supervises the Creating Law Enforcement Accountability & Responsibility (CLEAR) project, which works to address the unmet legal needs of Muslim, Arab, South Asian, and other communities in New York City that are particularly affected by national security and counterterrorism policies and practices.

Military Tribunal May Keep 9/11 Motives Hidden

By Ray McGovern,
April 07, 2011
Courtesy Of "Anti-War"

The Obama administration’s decision to use a military tribunal rather than a federal criminal court to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four others means the real motives behind the 9/11 attacks may remain obscure.

The Likud Lobby and their allied U.S. legislators can chalk up a significant victory for substantially shrinking any opportunity for the accused planners of 9/11 to tell their side of the story.

What? I sense some bristling. "Their side of the story?" Indeed! We’ve been told there is no "their side of the story."

Bromides Vice Explanations

For years, President George W. Bush got away with offering up the risible explanation that they "hate our freedoms." The stenographers of the White House press corps may have had to suppress smiles but silently swallowed the "they-hate-us-for-our-freedoms" rationale. 

The only journalist I can recall stepping up and asking, in effect, "Come on; now really; it’s important; why do they really hate us" was the indomitable Helen Thomas.

In January 2010, two weeks after Umar Farouk Abdulmutallab, the "underpants bomber," tried to down an airliner over Detroit, President Barack Obama asked White House counter-terrorism guru, John Brennan, to field questions from the White House press. 

Helen Thomas took the opportunity to ask why the would-be bomber did what he did. The exchange with Brennan is, hopefully, more instructive than it is depressing — highlighting a limited mindset still bogged down in bromides.

Thomas: "Why do they want to do us harm? And what is the motivation? We never hear what you find out on why."

Brennan: "Al Qaeda is an organization that is dedicated to murder and wanton slaughter of innocents. … They attract individuals like Mr. Abdulmutallab and use them for these types of attacks. He was motivated by a sense of religious sort of drive. Unfortunately, al Qaeda has perverted Islam, and has corrupted the concept of Islam, so that he’s (sic) able to attract these individuals. But al Qaeda has the agenda of destruction and death."

Thomas: "And you’re saying it’s because of religion?"

Brennan: "I’m saying it’s because of an al Qaeda organization that used the banner of religion in a very perverse and corrupt way."

Thomas: "Why?"

Brennan: "I think this is a long issue, but al Qaeda is just determined to carry out attacks here against the homeland."

Thomas: "But you haven’t explained why."

One should, I suppose, be grateful for small favors. At least Brennan did not adduce the they-hate-our-freedoms rationale.

So Why?

After the Obama administration announced on Nov. 13, 2009, that it intended to try Khalid Sheikh Mohammed in federal court for murder, I wrote an article which began by quoting ACLU attorney Denney LeBoeuf regarding some unpleasant facts, such as torture, that the case was likely to reveal.

"I think that we’re going to shine a light on something that a lot of people don’t want to look at," LeBoeuf said.

Never much for political correctness, I also went into some detail on the light that might be shed on more plausible reasons why "they hate us" — Exhibit A being U.S. support for Israel’s oppression of the Palestinians. You will not find much on this in the Fawning Corporate Media (FCM), but there is no lack of evidence.

I included, for example, the findings of a Sept. 23, 2004, report of the Pentagon-appointed U.S. Defense Science Board, which I’d suggest now has additional impact in light of the tumult in the Middle East and Northern Africa:

"Muslims do not ‘hate our freedom,’ but rather, they hate our policies. The overwhelming majority voice their objections to what they see as one-sided support in favor of Israel and against Palestinian rights, and the longstanding, even increasing support for what Muslims collectively see as tyrannies, most notably Egypt, Saudi Arabia, Jordan, Pakistan, and the Gulf States."

The FCM ignored the Defense Science Board report for two months. Finally, on Nov. 24, 2004, the New York Times published a story on the report — but with some revealing surgery in the above paragraph. The Times quoted the first sentence, but pressed the delete button for the one on what Muslims do object to — "what they see as one-sided support in favor of Israel and against Palestinian rights…"

The Times story did include the sentence from the original report that immediately followed the (excised) sentence about Israel.  So it was clearly a case of surgical removal of the offending sentence, not merely a need to shorten the paragraph.

Even More Obvious Revisions

Back to Khalid Sheikh Mohammed: As he was being interrogated, the drafters of the 9/11 Commission Report found themselves wondering why he would bear such hatred toward the U.S. 

They were aware that he earned a degree in mechanical engineering from the University of North Carolina/Greensboro, and speculated that he suffered some kind of gross indignity during his years there.

Not the case, the drafters were told by those with access to the interrogation reports. Rather, the report concludes on page 147:

"By his own account, KSM’s animus toward the United States stemmed not from his experience there as a student, but rather from his violent disagreement with U.S. foreign policy favoring Israel."

This is among the considerations that prompted the authors to observe later in the Commission report:

"America’s policy choices have consequences. Right or wrong, it is simply a fact that American policy regarding the Israeli-Palestinian conflict and American actions in Iraq are dominant staples of popular commentary across the Arab and Muslim world. … Neither Israel nor the new Iraq will be safer if worldwide Islamist terrorism grows stronger."

As for Khalid Sheikh Mohammed’s motivation, the neocon editors of the Washington Post waited a decent interval — five years – apparently in hopes that few readers would get as far as page 147 in the 9/11 Commission report, and/or that those who did would have short memories. 

On Aug. 30, 2009, the Post cited an unspecified "intelligence summary" for a brand new explanation of his motives:

"KSM’s limited and negative experience in the United States — which included a brief jail stay because of unpaid bills — almost certainly helped propel him on his path to becoming a terrorist. … He stated that his contact with the Americans, while minimal, confirmed his view that the United States was a debauched and racist country."

Let’s give the Post the benefit of the doubt. It could be, I suppose, that the above did not come from Khalid Sheikh Mohammed until his 183rd waterboarding session. In any case, the revised explanation of his motives is surely politically more convenient to those wishing to obscure Mohammed’s other explanation implicating "U.S. foreign policy favoring Israel."

White House Gives Up

The New York Times article on the Obama administration’s reversal of its earlier attempt to hold key 9/11 trials in a federal court declared in a headline, "White House Gives Up Civilian Court Plan." But what does the reversal mean?

For one thing, it means there is likely to be far less reportage and publicity than would have been the case in federal criminal court, which normally accommodates a far larger audience. Even plain folks like you and me can go and watch. (In 2009, I attended a U.S. Court of Appeals hearing in D.C. that reversed an earlier decision to release 17 innocent Uighur detainees into the United States from Guantanamo.)

Reduced public access to statements made by the 9/11 defendants was one of the specific reasons cited by Sen. Joe Lieberman and other members of Congress for blocking a federal criminal trial.

"Putting Khalid Sheikh Mohammed in a public courtroom in full view of the public gives him a better platform than any member of al Qaeda has been given to recruit new members," Lieberman said in February, successfully arguing that funds should be denied for holding such a trial.

In other words, Lieberman wanted to prevent Khalid Sheikh Mohammed and his co-defendants from having an opportunity to explain their actions in a way that the U.S. and world public would get to hear.

With the case handled by a much more tightly controlled military tribunal, the defendants are even surer to be denied that public "platform."

Even if Mohammed somehow could seize an opportunity, before sentencing, to explain what drove him to conduct the attacks of 9/11, his comments would likely fall like the proverbial tree in the forest.  There might actually be a few journalists within earshot able to listen and report.  But willing?

Favored journalists in attendance would be unlikely to provoke their military hosts or their editors back home by passing along to the readers any inconvenient motives that the defendant might express.

The Guantanamo locale affords the government other distinct advantages. In addition to the fewer attendees, there can be even tighter handling of secrets and the "CLASSIFIED" stamp can be used virtually at will. Transcripts can be heavily censored — all with very little scrutiny. 

The government also can select the attendees. In the past, military officials at Guantanamo have cherry-picked — and blacklisted — journalists, depending largely on how obediently they have behaved during earlier cases. 

These restrictions — and the choice of Guantanamo — are abhorrent to human rights advocates here and abroad. Neocons, though, can breathe easier, since they are reasonably assured of protection against any loud complaints from Khalid Sheikh Mohammed et al. about "U.S. foreign policy favoring Israel."

Still, the tribunal approach may further delay justice in the 9/11 cases, since the untested tribunal rules will likely be subjected to many more legal challenges than would be the case in the well-worn rules of criminal courts.

ACLU director Anthony Romero has noted that the military commission system is "rife with constitutional and procedural problems," adding that the Attorney General’s "flip-flop is devastating to the rule of law." 

The Constitution On Life Support

The most serious casualty appears to be the Constitution of the United States, given the dubious fairness of the military commissions and the noxious precedent set by the administration’s reversal. It is possible that some future president might expand their coverage to apply to anyone who is deemed to lend any form of support to "terrorists," such as perhaps leaking U.S. government secrets.

Kristen Breitweiser, a 9/11 widow and an attorney, wrote that she was given all of two hours "advance notice" regarding the Justice Department’s decision to not prosecute the remaining alleged 9/11 conspirators in an open court of law. 

She asked that we all ponder what this decision says about President Barack Obama, the Justice Department, and the United States of America. She provided her own thoughts:

"As for the Department of Justice, it shows their inability to prosecute individuals who are responsible for the death of 3,000 people on the morning of 9/11. Apparently our Constitution and judicial system — two of the very cornerstones that make America so great and used to set such a shining example to the rest of the world — are not adequately set up to respond to or deal with the aftermath of terrorism.

"To me, this is a startling and dismal acknowledgment that perhaps Osama Bin Laden did, in fact, win on the morning of 9/11. And chillingly, I wonder whether it wasn’t just the steel towers that were brought down and incinerated on 9/11, but the yellowed pages of our U.S. Constitution, as well."