So you may have read in the news a few weeks ago that US seeks the death penalty as six detained in Guantánamo are charged over 9/11. Though the process has been abominable, at least the decision to hold a trial (as opposed to indefinite detention) seems like a step in the right direction: away from the war on terror and toward a criminal justice response to terrorism. I wrote last year about Britain taking a step in the same direction.
Unfortunately, The Nation has an article today that suggests guilty verdicts in these trials may be a foregone conclusion. Here’s an excerpt from their article describing an interview with Col. Morris Davis , former chief prosecutor for Guantánamo’s military commissions:
When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes–the man who now oversees the tribunal process for the Defense Department. “[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.
“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.'”
It appears these will be show trials for political ends, in the Stalinist tradition. This is the polar opposite of the Nuremburg trials which established important precedents in international human rights law. Perhaps the most important of these was the invalidity of the Nuremberg defense: “I was just following orders.”
If the Bush appointees are are conceiving of these trials as the new Nuremberg (but rigged), then we must either assume that they are incredibly ignorant or that they are hoping to set a new insidious precedent for the war on terror. One in which show trials become a political tool for forwarding the Bush agenda and due process and rule of law become mere trappings or obstacles.
The impact of such a flawed process would go far beyond the immediate results of these trials. It would deeply undermine any attempts to respond to international terrorism with a transparent and open criminal justice process.