Rupert Cornwell: Torture, terror and a trial system that is tainted

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The Independent Online

If George W Bush has his way, this will be al-Qa'ida's Nuremberg. A presidency that began with the deadliest terrorist attacks in history on American soil will end with the trial, conviction and sentencing to death of those who planned them.

President Bush's own nation, and right-thinking people around the world, will be delighted that the "Guantánamo Bay system" has been vindicated, justice has prevailed and that individuals guilty of a crime against humanity will be getting exactly what they deserved. Alas for Mr Bush, a man who likes things simple and straightforward, the trial of Khalid Sheikh Mohammed and five others accused of a role in 9/11, will be anything but simple and straightforward. Yes, Americans (and most of the rest of us) have little doubt about their guilt, But, in this particular case, actual guilt or innocence is the least of the issues. This is now a trial about process – a process that stands tainted, probably beyond repair. In comparison, the judicial handling of the leaders of the Nazi regime was a model of clarity, fairness and openness.

To start with biggest problem of all: torture. By the admission of the CIA, Mohammed was subjected to waterboarding – a technique considered torture by virtually everyone on the planet with the exceptions of Messrs Bush and Cheney. How on earth can evidence obtained in that fashion be admissible in a court of law, even a military court?

We are now told that evidence will be based on "clean information" extracted by FBI and military interrogators during gentlemanly sessions at Guantánamo after Mohammed and four of the other defendants were transferred to the prison on Cuba in late summer 2006. But such evidence cannot be divorced from that obtained under duress during the years beforehand, when the five were held in CIA-run "ghost camps" whose very existence was only confirmed by Mr Bush 18 months ago.

It was in these paramilitary black holes that Mohammed was waterboarded and the other four doubtless subjected to various other "enhanced interrogation techniques". This is no vindication of the Guantánamo system. It is a monument to the way in which the Bush administration has acted outside all recognised international law.

Next, the military tribunal itself which will conduct the trial. Again, we are told that the proceedings, to the greatest extent possible, will be public. But these are not civilian courts. They are controlled by the Pentagon and the White House, the same executive branch that has authorised torture and sundry other human rights violations against the detainees – and that has usually managed to suppress public airing of inconvenient facts by arguing that disclosure would damage national security. As Groucho Marx observed, military justice is to justice what military music is to music.

In this case, if anything, the relationship is even more remote. Not one of the 275 people still held at Guantánamo Bay has yet been tried under the system of tribunals approved by Congress in 2006. "We will follow the rule of law," a senior staffer in the Pentagon's Office of Military Commissions that handles proceedings, told The New York Times yesterday. But what law?

These tribunals are virgin legal territory. Their rules are untested and may be challenged at every turn. How much of the trial will be held in camera? What will be the rules of evidence admissibility? Will some evidence be kept from defence lawyers on national security grounds? No military defence lawyers have yet been appointed because none, it seems, are immediately available.

Thus any trial probably may well not even have started by the time Mr Bush leaves the White House in January. Certainly, one will not have ended. Zacarias Moussaoui, the so-called 20th hijacker, offers the closest parallel. His trial, between 2002 and 2006, raised many of the same issues: the admissibility of evidence, defence access to "secret" prosecution material and its right to call imprisoned terrorist suspects as witnesses.

Admittedly, it was held in a civilian court under a judge far more tolerant of Moussaoui's antics than her military counterpart would have been. But the trial involved just one person and charges far less serious than those facing the "9/11 Six". Even so, it lasted more than four years.

"Closure", in the jargon of American legal pyschology, is the last act of a capital case, as a victim's relatives watch the killer die on a gurney in an execution chamber. But, for relatives of the 3,000 people who died in New York, Washington and Pennsylvania in September 2001, it is years away, if it comes at all.

By then, Guantánamo Bay itself, almost certainly, will have been closed by Mr Bush's successor, but Osama bin Laden may still be at large. Simple and straightforward? Forget it.

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