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Neither Attorney General Eric Holder nor Congress is backing down in the fight over where to prosecute terrorism suspects. Holder maintains that Federal Courts are the best place to try 9/11 plotter Khalid Sheik Mohammed and his 5 co-conspirators. A bipartisan group of Senators, meantime, is trying to force the Administration to prosecute terrorists in military courts. Guantanamo would be the obvious choice for military trials. The suspects are already there, and the legal system to try them is ready to go. The World’s Katy Clark has more.
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MARCO WERMAN: The Obama administration is still reviewing its options as to where to try key terrorism suspects, and that includes alleged 9/11 plotter Khalid Sheik Mohammed. Plans to try him at a federal court in New York generated a lot of opposition, and that’s kept alive the option of military trials. Guantanamo could be the venue. The suspects are already there, and the legal system to try them is ready to go, as The World’s Katy Clark reports.
KATY CLARK: Former President George W. Bush signed orders back in 2006 setting up military tribunals for suspected terrorists at Guantanamo. In doing so, Mr. Bush was adapting a long established system of military commissions to a modern threat. Still, critics charged that the commissions were a lesser form of justice than either civilian or other military courts. President Obama seemed to agree, and shortly after taking office he suspended the military tribunals and launched a review. Realizing, though, that the commissions might be a necessary option, President Obama signed his own version of the Military Commissions Act last fall. Navy Captain John Murphy is Chief Prosecutor in the Military Commissions office at the Pentagon. One of the biggest changes under President Obama, he says, is limits on the type of evidence that can now be admitted.
JOHN MURPHY: “There can be no torture, obviously. That was true in the previous statute as well. But no cruel, inhumane or degrading evidence or evidence obtained in that manner can be introduced.”
CLARK: Also any statements introduced in trial now have to be voluntary, rather than merely reliable. And when it comes to hearsay evidence, the burden is now on the party who offers it, to prove its reliability. Captain Murphy says defendants also have greater freedom to select their own military lawyers under the revamped Military Commissions Act or MCA.
MURPHY: “I think that the new MCA that is currently in effect is an improvement over our prior law, and I believe it represents fair justice. We’re ready to move forward, when we’re directed by our leadership to prosecute cases under that statute.”
CLARK: But not all lawyers are as enthusiastic as Captain Murphy is to see the military commissions resume. Law Professor Mark Denbeaux of Seton Hall University has represented several Guantanamo detainees. He says it remains unclear to him what the government means when it says no cruel, inhumane or degrading evidence or evidence obtained in that manner will be allowed. Denbeaux wonders if that includes evidence obtained after a detainee has been deprived of sleep for several days.
MARK DENBEAUX: “Now, I think you could argue evidence after 48 hours of being kept awake with loud noises and strobe lights isn’t reliable. But the standard here also is – is it humane? Are courts gonna say keeping people awake for 24 hours are inhumane? Fourteen hours? Eighteen hours? The questions here can’t be solved by saying we’re not only not allowing in torture. We’re also not allowing inhumanely obtained evidence.”
CLARK: Captain John Murphy says it’s up to the judge to determine what’s admissible, based on what Murphy describes as ‘the totality of the circumstances’.
MURPHY: “I would also add, too, that prosecutors make their own decisions before we ever offer evidence. And within my office, if we make a determination that a statement or other evidence is likely to be excluded under those rules, that is, that it’s cruel, inhumane, degrading or torture or not voluntarily provided, then we’re not gonna offer it.”
CLARK: Still, other legal experts interviewed for this story say that no matter what changes the Obama administration makes, the military commissions at Guantanamo are flawed beyond repair.
JOHN HUTSON: “For me, there’s absolutely no question that the best place to try terrorists is in federal court.”
CLARK: John Hutson served as Judge Advocate General of the U.S. Navy from 1997 to 2000. He’s now Dean of Franklin Pierce Law Center in Concord, New Hampshire.
HUTSON: “Let’s say that you came here from Mars. And you were told that we have some really, really bad guys that we want to prosecute to the fullest extent of the law. And we’ve got two judicial systems that we have to choose between. One of them, it successfully prosecuted 200 cases since September 11th, ’01, and most of those guys are still in prison. It has experienced judges and prosecutors and court personnel. And it clearly complies with Common Article 3 of the Geneva Conventions. That’s one system.”
CLARK: Hutson describes the other system as having tried just three cases since 9/11. Two of the defendants pleaded guilty and are now free. The third didn’t participate and was found guilty in absentia.
HUTSON: “Which one would you select? To me, that’s just a no brainer.”
CLARK: Captain John Murphy of the Military Commissions Office has heard such arguments before and shrugs them off. He maintains there’s no better law team than his to handle terrorism cases. Captain Murphy adds that one of the reasons why the Office of Military Commissions has only held three trials at Guantanamo so far is because proceedings have been on hold there for the past year. The Office of Military Commissions is now preparing three more cases. Preliminary hearings at Guantanamo are expected to resume later this month. The next trial is set to begin in July. For The World, this is Katy Clark.
MARCO WERMAN: The Obama administration is still reviewing its options as to where to try key terrorism suspects, and that includes alleged 9/11 plotter Khalid Sheik Mohammed. Plans to try him at a federal court in New York generated a lot of opposition, and that’s kept alive the option of military trials. Guantanamo could be the venue. The suspects are already there, and the legal system to try them is ready to go, as The World’s Katy Clark reports.
KATY CLARK: Former President George W. Bush signed orders back in 2006 setting up military tribunals for suspected terrorists at Guantanamo. In doing so, Mr. Bush was adapting a long established system of military commissions to a modern threat. Still, critics charged that the commissions were a lesser form of justice than either civilian or other military courts. President Obama seemed to agree, and shortly after taking office he suspended the military tribunals and launched a review. Realizing, though, that the commissions might be a necessary option, President Obama signed his own version of the Military Commissions Act last fall. Navy Captain John Murphy is Chief Prosecutor in the Military Commissions office at the Pentagon. One of the biggest changes under President Obama, he says, is limits on the type of evidence that can now be admitted.
JOHN MURPHY: “There can be no torture, obviously. That was true in the previous statute as well. But no cruel, inhumane or degrading evidence or evidence obtained in that manner can be introduced.”
CLARK: Also any statements introduced in trial now have to be voluntary, rather than merely reliable. And when it comes to hearsay evidence, the burden is now on the party who offers it, to prove its reliability. Captain Murphy says defendants also have greater freedom to select their own military lawyers under the revamped Military Commissions Act or MCA.
MURPHY: “I think that the new MCA that is currently in effect is an improvement over our prior law, and I believe it represents fair justice. We’re ready to move forward, when we’re directed by our leadership to prosecute cases under that statute.”
CLARK: But not all lawyers are as enthusiastic as Captain Murphy is to see the military commissions resume. Law Professor Mark Denbeaux of Seton Hall University has represented several Guantanamo detainees. He says it remains unclear to him what the government means when it says no cruel, inhumane or degrading evidence or evidence obtained in that manner will be allowed. Denbeaux wonders if that includes evidence obtained after a detainee has been deprived of sleep for several days.
MARK DENBEAUX: “Now, I think you could argue evidence after 48 hours of being kept awake with loud noises and strobe lights isn’t reliable. But the standard here also is – is it humane? Are courts gonna say keeping people awake for 24 hours are inhumane? Fourteen hours? Eighteen hours? The questions here can’t be solved by saying we’re not only not allowing in torture. We’re also not allowing inhumanely obtained evidence.”
CLARK: Captain John Murphy says it’s up to the judge to determine what’s admissible, based on what Murphy describes as ‘the totality of the circumstances’.
MURPHY: “I would also add, too, that prosecutors make their own decisions before we ever offer evidence. And within my office, if we make a determination that a statement or other evidence is likely to be excluded under those rules, that is, that it’s cruel, inhumane, degrading or torture or not voluntarily provided, then we’re not gonna offer it.”
CLARK: Still, other legal experts interviewed for this story say that no matter what changes the Obama administration makes, the military commissions at Guantanamo are flawed beyond repair.
JOHN HUTSON: “For me, there’s absolutely no question that the best place to try terrorists is in federal court.”
CLARK: John Hutson served as Judge Advocate General of the U.S. Navy from 1997 to 2000. He’s now Dean of Franklin Pierce Law Center in Concord, New Hampshire.
HUTSON: “Let’s say that you came here from Mars. And you were told that we have some really, really bad guys that we want to prosecute to the fullest extent of the law. And we’ve got two judicial systems that we have to choose between. One of them, it successfully prosecuted 200 cases since September 11th, ’01, and most of those guys are still in prison. It has experienced judges and prosecutors and court personnel. And it clearly complies with Common Article 3 of the Geneva Conventions. That’s one system.”
CLARK: Hutson describes the other system as having tried just three cases since 9/11. Two of the defendants pleaded guilty and are now free. The third didn’t participate and was found guilty in absentia.
HUTSON: “Which one would you select? To me, that’s just a no brainer.”
CLARK: Captain John Murphy of the Military Commissions Office has heard such arguments before and shrugs them off. He maintains there’s no better law team than his to handle terrorism cases. Captain Murphy adds that one of the reasons why the Office of Military Commissions has only held three trials at Guantanamo so far is because proceedings have been on hold there for the past year. The Office of Military Commissions is now preparing three more cases. Preliminary hearings at Guantanamo are expected to resume later this month. The next trial is set to begin in July. For The World, this is Katy Clark.
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