Controversial Trials
for Guantanamo Prisoners
(with a DBQ)

By Alan Shapiro

To the Teacher:

Attorney General Eric Holder announced in November that there will be civilian trials for five 9/11 accused terrorists being held at the U.S. prison at Guantánamo, Cuba; five other Guantánamo prisoners will be tried in military tribunals.

This news has generated heated debate, as has the continuing operation of Guantánamo, which will remain open for now, though President Obama had promised to close it in January 2010. The first student reading below outlines the differences between the two types of trials and the difficult problems faced by the president in closing Guantánamo. The second reading includes a statement by the attorney general about his decision and a dialogue before the Senate Judiciary Committee between him and Senator Lindsay Graham of South Carolina.

The DBQ (document-based question) that follows might be used either as a writing assignment or for small-group and class discussion.

For an earlier set of materials on some of the issues raised in these materials, see "Treatment of Terrorist Suspects: Obama & His Critics" in the high school section of
www.teachablemoment.org.

Student Reading 1:
Trials set for 9/11 and USS Cole prisoners at Guantánamo

"I was responsible for the 9/11 operation, from A to Z," said Khalid Sheikh Mohammed in a March 2007 hearing at the U.S. prison at Guantánamo, according to transcripts released by the Pentagon. He described himself as the Al Qaeda mastermind behind the 2001 attacks on the World Trade Center and the Pentagon, which killed nearly 3,000 people.

Mohammed also claimed responsibility for organizing the 1993 World Trade Center bombing, the Bali nightclub bombings, an attempted jet plane shoe bombing, attacks on Heathrow Airport and the Big Ben clock tower in London, the murder of American journalist Daniel Pearl, and assassination attempts on Pope John Paul II, Pervez Musharraf, (formerly the president of Pakistan), and Bill Clinton. The accuracy of his claims is questionable. Mohammed, whose torture included being waterboarded 183 times, may have confessed to anything he could think of to get the torture to stop.

"Because war, for sure, there will be victims," he said at the hearing through a translator. "I'm not happy that three thousand been killed in America. I feel sorry even. I don't like to kill children and the kids." He added: "This is why the language of any war in the world is killing…."

On November 13, 2009, Attorney General Eric Holder announced that Mohammed and four other accused 9/11 co-conspirators being held at Guantánamo--Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi, and Ali Abd al-Aziz Ali--are to be tried in a Manhattan federal courtroom only a few blocks away from the site where the World Trade Center buildings stood. The attorney general said that prosecutors would seek death sentences for these five men in a civilian court trial at a date to be announced later.

Holder said that five other suspected terrorist prisoners at Guantánamo will be prosecuted in a military commissions trial, whose location and date will be made public later. These men include Abd al-Rahim al-Nashiri, who will be prosecuted for planning the 2000 suicide bombing attack in Yemen on a destroyer, the USS Cole, in which 17 American sailors were killed.

Federal civilian court trial vs. military commissions tribunal

AP reporter Mark Sherman recently wrote about the difference between a federal civilian court and a military commissions tribunal: "The major differences between the systems are the federal judiciary's independence, rooted in the Constitution and lifetime appointments of judges, and the relaxed rules for admitting evidence in military tribunals.

"Federal courts bar evidence obtained by coercion. And the new law regarding military commissions that President Barack Obama signed last month forbids evidence derived from torture and other harsh interrogation techniques. But the commissions still have rules that allow greater use of hearsay testimony and, in some instances, could permit the introduction of coerced testimony.

"Military judges ultimately will decide what evidence can be admitted, but the new law allows statements made by defendants to be used even if they are not given voluntarily in certain circumstances, including in combat situations. Written witness statements, rather than live testimony that is subject to cross-examination, also can be admitted by military judges.

"The larger issue, for some civil libertarians, is what the American Civil Liberties Union's Jonathan Hafetz called a 'legitimacy deficit.''' (Mark Sherman, AP reporter, http://news.yahoo.com, 11/21/09)

Much of the controversy about the Obama administration's decision to try the 9/11 terrorist suspects in a civilian court focused on whether those suspects deserved all of the protections of the U.S. criminal justice system. For example, in a civilian court, they are entitlted to the Miranda rights established in a 1963 Supreme Court case: the rights to refuse to answer questions and remain silent; the right to be informed that anything you say may be used against you in a court of law; the right to consult with an attorney before speaking to police officers; the right to have an attorney present when you are questioned; the right to have a government-appointed attorney if you cannot afford one; the right to answer questions without an attorney present but also to stop at any point.

There is controversy, too, over military tribunals. Most of the evidence against Nashiri consists of hearsay, and he could be found guilty and executed without ever having the chance to confront his accusers. (Charlie Savage, "Trial Without Major Witness Will Test Tribunal System," New York Times, 12/1/09)

The ten men to be tried in different types of courts are among the remaining 215 prisoners at Guantánamo. At one point after 9/11 this prison held indefinitely nearly 800 men whose treatment included torture. President Bush and his administration called the torture "enhanced interrogation techniques" and maintained that it produced information that saved American lives. These techniques and Guantánamo itself have aroused opposition in the U.S. and internationally. Only three of the Guantánamo detainees have so far been prosecuted as terrorists in military commissions trials. More than 500 prisoners had no charges filed against them and were eventually released.

After his inauguration, President Obama announced that he would close Guantánamo by January 2010. But the U.S. will not meet this deadline because of two problems: 1) Most of the remaining prisoners have not been charged with any crime. They should be freed, but where are they to be sent? Few other countries are willing to admit any of these detainees, and American lawmakers are fearful of allowing them freedom in the U.S. 2) Some men are regarded as too dangerous to release but too difficult to charge with crimes and bring to any court. They may have been tortured to produce confessions that are not admissible in court. Or officials may believe that publicly releasing the evidence against them will endanger national security. As a presidential candidate, Obama sharply criticized indefinite imprisonment as a violation of the rule of law, but now he is continuing the policy.

For discussion

1. What questions do you have about the reading? How might they be answered?

2. What differences are there between federal civilian trials and military commissions tribunals?

3. What are some of the problems in trying prisoners in civilian courts? Before military tribunals?

4. Why was the prison at Guantánamo opened? If you don't know, how might you find out?

5. What are "enhanced interrogation techniques" and why were they authorized by the Bush administration? If you don't know, how might you find out?

6. What problems does President Obama have to solve before Guantánamo can be closed?

Student Reading 2:
Attorney General Holder and Senator Lindsay Graham

Attorney General Holder made the following statement before the Senate Judiciary Committee to explain and defend the administration's decisions about trying the ten Guantánamo prisoners:

"The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions….First, we know that we can prosecute terrorists in our federal courts safely and securely because we have been doing it for years. There are more than 300 convicted international and domestic terrorists currently in Bureau of Prisons custody, including those responsible for the 1993 World Trade Center bombing and the attacks on our embassies in Africa….I have talked to Mayor Bloomberg of New York, and both he and the Police Commissioner Ray Kelly believe that we can safely hold these trials in New York.

"Second, we can protect classified material during trial. The Classified Information Procedures Act, or CIPA, establishes strict rules and procedures for the use of classified information at trial, and we have used it to protect classified information in a range of terrorism cases.

"Third, Khalid Sheikh Mohammed will have no more of a platform to spew his hateful ideology in federal court than he would have in military commissions. Before the commissions last year, he declared the proceedings an 'inquisition,' condemned his own attorneys and our Constitution, and professed his desire to become a martyr. Those proceedings were heavily covered in the media, yet few complained at the time that his rants threatened the fabric of our democracy…. I'm not scared of what KSM will have to say at trial - and no one else needs to be either."

After he made this statement, Holder and Senator Lindsay Graham, South Carolina Republican, engaged in dialogue focusing on the differences between 1) a criminal suspect's due process rights, such as Miranda rights, and 2) the absence of such rights for terrorist suspects subject to military law and military justice:

SEN. GRAHAM: If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs…the criminal defendant is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you're criminalizing the war, that if we caught bin Laden tomorrow, we'd have mixed theories and we couldn't turn him over -- to the CIA, the FBI or military intelligence -- for an interrogation on the battlefield, because now we're saying that he is subject to criminal court in the United States. And you're confusing the people fighting this war.

What would you tell the military commander who captured him? Would you tell him, 'You must read him his rights and give him a lawyer'? And if you didn't tell him that, would you jeopardize the prosecution in a federal court?

ATTY GEN. HOLDER: We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings.

With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to --

SEN. GRAHAM: Mr. Attorney General… if we're going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court [are] the rules in this country. [They are] unlike military law…you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach.

But under domestic criminal law, the moment the person is in the hands of the United States government, they're entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we're going to make this country less safe. That is my problem with what you have done.

You're a fine man. I know you want to do everything to help this country be safe, but I think you've made a fundamental mistake here. You have taken a wartime model that will allow us flexibility when it comes to intelligence gathering, and you have compromised this country's ability to deal with people who are at war with us, by interjecting into this system the possibility that they may be given the same constitutional rights as any American citizen.

And the main reason that KSM is going to court apparently is because the people he decided to kill were here in America and mostly civilian, and the person going into military court decided to kill some military members overseas. I think that is a perversion of the justice system.

ATTY GEN. HOLDER: What I said repeatedly is that we should use all the tools available to us [including] military courts….The conviction of Osama bin Laden, were he to come into our custody, would not depend on any custodial statements that he would make. The case against him, both for those cases that have already been indicted -- the case that we could make against him for the -- his involvement in the 9/11 case --

SEN. GRAHAM: Right --

ATTY GEN. HOLDER: -- would not be dependent on Miranda warnings --

SEN. GRAHAM: Mr. Attorney --

ATTY GEN. HOLDER: -- would not be dependent on custodial interrogations. And so I think in some ways you've thrown up something that is -- with all due respect, I think is a red herring.

SEN. GRAHAM: Well --

ATTY GEN. HOLDER: It would not be something -- (inaudible) --

SEN. GRAHAM: With all due respect, every military lawyer that I've talked to is deeply concerned about the fact that, if we go down this road, we're criminalizing the war and we're putting our intelligence-gathering at risk….

(National Public Radio, 11/1709)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why does Senator Graham oppose the Attorney General's decision to try the 9/11 defendants in a civilian court? Why does the senator think that by "criminalizing the war…we're putting our intelligence gathering at risk"? How does the attorney general answer the senator's argument?

3. Whose point of view makes the most sense to you and why?

4. Does the attorney general explain in his opening remarks or in his dialogue with the senator why some defendants will be tried in a civilian court and others in a military tribunal? If so, how? If not, why do you think he doesn't?

DBQ: CONTROVERSIAL TRIALS FOR TERRORIST SUSPECTS

Read each paragraph and then answer the question following it. After you have real all of the paragraphs, write an essay in response to item G.

A

Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered…. The Secretary of Defense will notify the Congress of several changes to the rules governing the commissions. The rule changes will ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify….These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law.

--President Barack Obama

Question: Why are military commissions trials appropriate for some terrorist suspects?

B.

The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second…even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, [a military commission] still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism…. Fourth, juveniles may still be subject to trial by military commission.….The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option."

--Air Force Reserve Lt. Col. David Frakt, formerly, a defense lawyer for a Guantanamo prisoner

Question: Why are military commissions trials are inappropriate for any terrorist suspects?

C

For terrorists, such as those detained at Guantanamo Bay, military commissions are superior to civilian courts. They permit better protection of classified information, spare our communities the disruption that would come with a criminal trial in a civilian courtroom, and minimize the risk that a judge will order the release of a detainee into our country. But most importantly, military commissions are the right choice because they recognize that these individuals are dangerous terrorists who have committed acts of war against our country, not just common criminals.

Besides, it's an unnecessary risk to bring Khalid Sheikh Mohammed and other terrorists to New York City. Not only will the entire city be on alert, the trials themselves could hurt our efforts in the war against terrorists. As a result of the trial of the "Blind Sheik," Omar Abdel Rahman, who plotted the first attack on the World Trade Center, al Qaeda obtained valuable information about U.S. intelligence sources and methods. That made the job of fighting terrorists more difficult. And imagine you're a juror and you vote to convict. You'll need lifetime protection; and you'd better hope it works.

--Senator Jon Kyl, Arizona Republican

Question: What is the most important reason why military commissions trials are appropriate for terrorist suspects?

D

While Holder's decision to prosecute the 9/11 defendants in federal court is a huge step forward, it is troubling that the administration plans to continue the use of military commissions for other detainees. The American Civil Liberties Union has been observing these proceedings since their inception, and we can unequivocally say that they have been an abject failure. The commission system was designed to cut corners and ensure quick convictions, and it has made a mockery of American justice….Even with recent improvements passed by Congress, the commissions remain a second-class system of justice that fails to meet domestic and international legal standards, and any of their outcomes will be subject to question….If our government has evidence against detainees, it should do what it has always done before - go into a courtroom and prove its case beyond a reasonable doubt. America is certainly up to that task.

--Anthony D. Romero, Executive Director of the ACLU

Question: Why have military commissions trials been a failure?

E

The 9/11 attacks were an act of war and a heinous crime….Both acts of terrorism and war crimes…can be tried in civilian federal courts. Indeed, the War Crimes Act provides jurisdiction in civilian courts for just such crimes. There is undoubtedly a risk that a trial in civilian court could provide a platform for KSM and could disclose military secrets; but so, too, would a military trial….By dismissing the rule of law and the Geneva Conventions…and subjecting detainees to inhumane treatment and torture, the Bush administration made Guantánamo the best propaganda Al Qaeda could ever have hoped for….If we are to try to 9/11 perpetrators without handing Al Qaeda another propaganda victory, the trial must be fair beyond question. After the taint the Bush administration's tactics have created, the only place to achieve that is a civilian criminal court.

--David Cole, law professor and legal affairs correspondent, The Nation

Question: Why is a civilian criminal court the only place in which to avoid a propaganda victory for Al Qaeda?

F

I consider [the decision to have civilian trials for 9/11 suspects] to be not only be unwise, but in fact based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us, and to return instead to the mindset that prevailed before September 11, 2001.

--Michael Mukasey, former federal judge and attorney general in Bush administration

Question: Why are civilian trials for terrorist suspects a bad mistake?

G

For the past seven years, U.S. treatment of terrorist suspects at Guantánamo has been a controversial issue. Now the controversy is focusing on whether the Obama administration is right in its decision to hold federal civilian trials for five 9/11 suspects and military commissions trials for five others.

Using information from the documents and your understanding of civilian trials and military trials, write a well-organized essay that includes an introduction, several paragraphs and a conclusion in which you:

1) compare and contrast different viewpoints about which type of trial is most appropriate for Guantánamo terrorist suspects and

2) discuss your own point of view and the reasons for it

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: lnshapiro07@gmail.com.

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