How Guantanamo's 'war court' differs from federal system

Khalid Sheikh Mohammed-photo
Khalid Sheikh Mohammed is shown in this file photograph during his arrest March 1, 2003. The accused 9/11 mastermind and four suspected co-conspirators are facing trial in a Guantanamo war crimes tribunal on charges that could carry the death penalty.

Credit: Courtesy of U.S. News & World Report/Reuters

What’s happening?

Tomorrow, five men accused of planning the attacks that killed nearly 3,000 people on 9/11 will be arraigned in a military courtroom at the Guantanamo Bay prison in Cuba. The high-profile case will shine an international spotlight on a “war court” system that, despite legal reforms, is derided as inherently unjust by critics and lauded by proponents as the most secure, efficient forum to try detainees suspected of terrorism. A trial could offer an intimate look at the events leading up to the 2001 terrorist attacks and also could raise the issues of torture and inmate abuse that became synonymous with the infamous prison.

Who are the defendants?

  • Khalid Sheikh Mohammed is the self-proclaimed architect of the 9/11 terror attacks, who has also claimed responsibility for murdering American journalist Daniel Pearl in Pakistan. Mohammed was captured in 2003 and held in secret CIA prisons before arriving at Guantanamo in 2006. During that time, he was waterboarded 183 times, according to CIA records.
  • Walid Muhammad Salih Mubarak Bin 'Attash is accused of helping to train hijackers in al-Qaida camps in Afghanistan and carrying out much of the groundwork in preparation for the attack, including “casing missions” of airport security and American Airlines flights throughout Asia.
  • Ramzi Binalshibh was supposed to be a hijacker but couldn’t get a U.S. visa, according to the government. Instead, the governments says he became Mohammed’s main assistant in plotting the attacks and helping to coordinate flight training for the hijackers who made it to the U.S. There have been questions about whether Binalshibh is mentally competent to stand trial.
  • Ali Abdul Aziz Ali is accused of playing a key role in helping the hijackers prepare for the attacks, assisting them with logistics like money transfers, visas and flight arrangements. His wife, Aafia Siddiqui, was convicted in federal court of attempted murder for shooting at U.S. forces and FBI agents as she tried to escape custody in Afghanistan. She is serving an 86-year sentence.
  • Mustafa Ahmed Adam al Hawsawi also is accused of helping with logistics like credit cards and plane tickets. There have been questions about whether Hawsawi is mentally competent to stand trial.

The defendants each are charged with eight counts, including conspiracy, murder in violation of the law of war, hijacking of an aircraft and terrorism. In a 2009 court filing, they proudly acknowledged their role in the attacks, calling the charges “badges of honor.” If convicted by a panel of military officers, they could face the death penalty. This is the second time they will be arraigned. Proceedings broke off after President Barack Obama took office in 2009, vowing to shut down Guantanamo and try terror suspects in a federal courtroom in Manhattan. That plan failed amid political opposition and outcry over security. Military prosecutors refiled the charges in 2011, and they were referred to the military commission last month.

How is a military commission trial different from a federal trial on U.S. soil?

One of the key differences between a trial in military and federal court is the admissibility of hearsay. Federal courts generally prohibit the use of secondhand statements as evidence – a witness relaying what someone else told him or her, for example. By law, the defendant has a right to question the witnesses against him or her, and that cannot happen if the statement comes in the form of an anonymous memo or an interrogator relaying what a suspect said about the defendant.

Under a military commission trial, the hearsay rules are more relaxed. Attorneys can present secondhand information if the judge deems it impractical to bring the witness to court and thinks the information is reliable and serves the interests of justice. Military commission court rules say the use of hearsay is justified because attorneys must build a case based largely on evidence gathered in foreign countries, through military and intelligence operations, which makes it more difficult to produce the witnesses who could give a firsthand account during the trial.

Evidence obtained through torture

It’s difficult to talk about detainees at Guantanamo or other notorious prisons without conjuring up images of hooded captives stripped naked, cowering before attack dogs or forced into humiliating positions. The allegations and substantial documentation of torture methods have complicated past prosecutions and likely will be an issue in this case as well.

According to a declassified 2005 CIA memo, Mohammed was waterboarded 183 times in March 2003 while being held in a secret prison before transfer to Guantanamo. CIA memos also detail a number of other interrogation methods that could be used, including slamming prisoners into walls, depriving them of sleep and forcing them into a cramped box with an insect inside.

Current military court rules, revised by Obama, ban the use of statements obtained by “torture or cruel, inhuman, or degrading treatment.” If a judge deems interrogation methods too harsh, the evidence is thrown out.

“Derivative evidence” – evidence eventually gathered as a result of something a detainee said because of torture – is also generally prohibited, though there is an exception for information the judge believes the government would have learned anyway, without the torture. Derivative evidence could include information obtained from a witness whose identity interrogators learned by torturing a detainee, for example.

Critics say the lax hearsay rules could allow statements obtained by torture to slip through because it may be difficult for a judge to determine what the circumstances were when an absent or anonymous witness gave the statement.

Verdict and sentencing

In a federal court, a judge imposes a sentence using federal guidelines and his or her own discretion after the jury determines the verdict. At Guantanamo, it is the jury of 12 military officers that will decide the fate of Mohammed and his co-defendants, including whether they should be put to death if found guilty. (There would be a lengthy appeal process before any executions were carried out.)

The process for jurors to reach that verdict also differs. In federal court, there must be unanimous agreement on every charge. One holdout juror can result in a deadlock, in which case a judge would declare a mistrial – meaning prosecutors can come back and try again.

With the military tribunal, only two-thirds agreement is required for a conviction. If fewer than eight of the 12 jurors are convinced there is enough evidence to convict, that charge is tossed out permanently. On sentencing, a two-thirds majority is required for a sentence of fewer than 10 years. Three-fourths of the panel must agree on sentences of more than 10 years. To impose the death penalty, the jury must be unanimous on both the conviction and sentencing.

Freedom unlikely

Regardless of the verdict, it’s unlikely the defendants in this case will leave Guantanamo anytime soon. The government considers Mohammed and his co-defendants to be “high-value detainees” – powerful terror leaders too dangerous to set free into the world. Even completing a sentence does not guarantee release at Guantanamo. Because the defendants are classified as enemy combatants, the government says it can continue to hold them as long as armed conflict is ongoing.

Are most terror-related cases tried in military courts?

No. About a half dozen cases total have gone before the military court at Guantanamo. According to the Center on Law and Security at the New York University School of Law, some 310 defendants have been indicted in federal court on "jihadist terror" or national security charges since 9/11, with a conviction rate of 87 percent. Of defendants who were convicted, 25 received a sentence of more than 30 years, 35 received a sentence of between 15 and 30 years, and 91 received fewer than 15 years, according to the report [PDF]. Federal prosecutions spiked after Obama took office, the report shows, jumping from four cases in 2008 to 42 in 2009 – the most since 2002.

This story was edited by Robert Salladay and copy edited by Nikki Frick.

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