Detainees Charged as Sept. 11 Conspirators

Six detainees at Guantanamo Bay, including suspected Sept. 11 conspirator Khalid Sheikh Muhammad, have been formally charged with murder and conspiracy. The Pentagon is seeking the death penalty if convicted. Vincent Warren, a defense attorney for one of the detainees, and Glenn Sulmasy, a law professor, discuss the case.

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MICHEL MARTIN, host:

Speaking of national security, the U.S. brought charges of murder and conspiracy at six detainees at Guantanamo Bay for their alleged role in the September 11 terror attacks. Pentagon officials disclosed the charges Monday, said they will seek the death penalty. The detainees will be tried in a special court at Guantanamo Bay but many questions are already being raised about the procedures under which these trial may take place and especially how evidence obtained with tactics, some considered to be torture, can be included. Here to tell us more about this is Vincent Warren, the Executive Director of the Center For Constitutional Rights.

His group is defending a number of detainees at Guantanamo including one of those to be tried for murder. Also with us is Glenn Sulmasy. He's a law professor at the U.S. Coast Guard Academy and a National Security and Human Rights Fellow at Harvard University. Thank you both so much for speaking with us.

Mr. VINCENT WARREN (Executive Director of the Center For Constitutional Rights): Good morning.

Professor GLENN SULMASY (Harvard University): Thank you, Michel.

MARTIN: Mr. Warren I was struggling with the language used to describe these procedures. We are used to thinking of military trials as court martials of military personnel. But that's not quite right either.

Mr. WARREN: Well that's the proper way to think of this and you know, the difficulty Michel with this military commission is, that trials are supposed to seek generally two things, truth and justice. And the way that these commissions are set up, the American public is not likely to get either one. The military commissions at Guantanamo unlike civilian trials, allow secret evidence, they allow hearsay evidence, which is deemed to be unreliable unless there are some mitigating factors in civil courts. And most importantly, in these proceedings they will allow evidence that are obtained through torture and abuse. And we know that these, many of these detainees in this particular hearing and including some of the 275 that remain in Guantanamo, have been severely tortured and abused.

MARTIN: But I'm sorry, I thought that the rules of the court on the U.S. naval base prohibit the use of evidence gained through torture as does the International Treaty that the U.S. has signed. So how would that be possible?

Mr. WARREN: Well very simply because why don't you ask the attorney general, ask the president, ask the Secretary of Defense if things like waterboarding are torture. And what you'll get and what you've gotten over the past couple of years is an evasive answer. And what the government is seeking to do is, they are trying to position themselves in taking something like waterboarding which everyone knows to be torture and they are pretending that it's not. And now they are saying, well it might not have been legally considered torture at the time that memos were done by the Department of Justice. So I completely expect that that government will seek to have evidence obtained by torture, either by these people who were charged or by other folks, introduced and used as evidence in chief at the trial and that is simply illegal under U.S. and international law.

MARTIN: Professor Sulmasy, you have written about the necessity for some form of a special tribunal. Why not use the civilian courts for this purpose?

Prof. SULMASY: I think that goes to the nature of the whole issue Michel. This is really a mixed war, a mix of law enforcement and warfare, the new war we are fighting. Nine eleven introduced this new kind of a hybrid war. And I think we have to look at this now for a good sign of this that there's adjudication taking place. One of the issues that I've proposed is a national security court or Federal terrorism court, is to adjudicate these crimes, not keep people indefinitely which I these we all on this call would agree, is not appropriate in many ways for the war we are fighting.

So this is actually a good sign that at least these six are facing adjudication and it shows the U.S. commitment to both attempting to find justice for these folks as well as upholding the rule of law.

MARTIN: You've heard Mr. Warren's objection sir, now you called for these national security courts. Would elements of your proposal be contained in this tribunal or is the fact that we just really don't know what rules would govern these tribunals?

Prof. SULMASY: No, I think I'd have more of a mixture and actually fairly similar - what I propose Michel is a mixture of both our Article 3 Civilian Courts and the military commissions. But we do know, on these military commissions, what rules they will go by. If the military commissions after 2006, which specifically laid out how this would take place, how it would be proposed, what rules of evidence would apply and really I think, overwhelmingly it was passed in a bipartisan fashion by the Congress.

So it's interesting to hear a year and a half later, folks now raising objections to how this is taking place when many folks on both sides of the isle, voted for these rules.

Mr. WARREN: Can I respond to that?

MARTIN: Yes please.

Mr. WARREN: We have - I want to remind Glenn and the listeners that this is the first time we've heard about military commissions. President Bush set up a military commission system by Executive Order and that case went up to the Supreme Court for, constitutional rights was involved in that case. And the Supreme Court said that it did not have congressional approval and it was essentially an illegal court. And Congress came back with the Military Commissions Act which is really one of the most pernicious pieces of legislation in the last several years, that ratified and created this particular commission. But there's one thing that I think is really key here, is that it's not so much what happens when the government wins. What happens if the government loses?

In a normal court, if you are found not guilty, or acquitted of the charges, you can be released. Government officials with respect to this military commission said, that even if any of these people and it's not - if any of these people are found not guilty, the government has no intention of releasing them and the best they can do is to be in jail for the rest of their lives legally.

MARTIN: Well that's an interesting point professor. What about that, what are we really fighting over here if indeed officials have said that they'll never let these men go regardless?

Prof. SULMASY: I think what we are looking at is again, everything is new in my belief. Over a period of six years and I think Vincent is 100 percent right, we've seen this evolve from the original Executive Order in 2001, the Supreme Court intervened so you had the justice level of the government intervening to change things and the Congress, the legislative branch intervened to create the Military Commissions Act. And now we are dealing with what we have before us. And I think if you look at it as a mixture, as really if we are at war, these folks could be construed as POWs, and in that case, we would never have to try them. They would just stay in detention indeterminate period of time until the cessation of hostilities in accordance with international law.

So I think by us adjudicating and putting these cases forward, we are at least trying these people, giving their stay in court. And the reality is, which is often missed by many folks discussing this Michel, is a laundry list of rights. Essentially what we are doing now is putting these folks into a trial that is roughly analogous to the court's martial. So you have a right to a full and fair trial. You know the charges, the presumption of innocence, government provided counsel. So I can go on and on, right to appeal.

So if you have all of these rights, a laundry list of rights in the MCA for the detainees and the alleged Jihadist, you have in many ways, more rights given to them in this hearing, in the commissions, than they would in their host countries, which is something that I think is critically important for us to look at when we are analyzing what the United States is doing.

MARTIN: And partly that, I would, I guess a message to the international community about the Rule of Law. Mr. Warren just briefly, we only have a minute left. I would like to ask how do you go about defending these cases now, since it isn't clear what evidence will be permitted? What do you do?

Mr. WARREN: Well the first thing we need to do is to look at the rules that have been set up and to, there's going to be military defense counsel that's appointed to the detainees and they'll also have access to civilian defense counsel. But you know, the key question is the question of rights. There is no definitive answer, at least on the government's part, that the U.S. Constitution applies to this proceeding.

So what are the rights and what are the remedies? How do you go about challenging this system or making sure that the system is fair within a framework of U.S. law? The government has taken a position that these are not POWs. They are also taking the position that they don't belong in civilian courts. And so you have this system where there really is no remedy whatsoever, other than them staying in jail for the rest of their lives or death.

MARTIN: Mr. Warren thank you so much. Vincent Warren, Executive Director of the Center for Constitutional Rights joined us. Thank you so much. And Law Professor, Glenn Sulmasy of the Coast Guard Academy. He's also a National Security Fellow at Harvard's (Unintelligible) Center. Gentlemen we thank you both so much for joining us.

Mr. WARREN: Thank you.

Prof. SULMASY: Thank you very much.

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