We recall the never ending arguments as to how the suspected terrorists confined in Guantanamo Bay, Cuba, will be tried. The Obama administration has consistently sought to try these and similar cases in the United States, in civil courts, where rules of evidence and testimony are stronger, which, many believe, result in more fair and just verdicts. Hearsay evidence is allowed in military tribunals; the tribunals are ordinarily used in cases where time is of the essence, as in battlefield situations. These trials, military tribunals, have begun.
Khalid Sheikh Mohammed, allegedly the mastermind of the never to be forgotten September 11, 2001 attacks and four other suspected terrorists were brought into a Guantanamo Bay Naval base courtroom for arraignment. It might have occurred to planners that prisoners who have been subject to cruel abuse night and day for several years would find some difficulty in adjusting to the decorum of a courtroom.
The prisoners had arrived at a decision to participate only passively in the preliminary motions. An indication of their mindset came when they were asked to place headphones on their ears so they could listen in their native language. The defendants found the placement of headphones difficult or impossible. They believed the phones to be torture devices. The prisoners passively ignored the judge, praying into their beards, or making frightened outbursts. They hoped to bring the details of their torture to the attention of whomever might listen. They have no way of knowing if the world is aware of their torment.
A defense attorney used the word “torture” while explaining to the court the seemingly odd acceptance of the headphones. Although torture is a primary issue in this case, and torture is at the heart of what the defendants are hoping to bring to the light of day, the word torture itself has been banned from the proceedings. The rationale for the banning is that it refers to “classified information.” The physical response to the use of the word in court is to disallow those listening to the proceeding to hear it. The court proceedings are on a 40 second delay, and the media, as well as interested persons, are behind a soundproof glass. Thus, when the word torture is spoken, the listeners only hear static.
David Nevin is the attorney for Sheikh Mohammed. He has been provided with a long list of subjects banned from the proceedings and presumably from the coming trial. He was told, he relates, “You can’t talk about it [torture], you can’t discuss it… It is not going to happen!”
Steps have already been taken in the conduct of this military tribunal to prevent any escape from further punishment by the defendants as a result of their being waterboarded or otherwise tortured. In the somewhat obfuscational words of Brigadier General Mark martins, the chief prosecutor of the commissions, “The remedy for torture or cruel treatment, things that will make you ashamed that they were done, that are deplorable and disappointing, The remedy is not to dismiss all charges, It is harder than that. It doesn’t pass the common sense test. That everything is polluted and tainted by an instance of torture? That means everyone goes free because someone else, who may have been acting independently,out of control, or did something wrong? That’s not Justice. It is harder than that” General Martins will also be the head of the team in the prosecution in the September 11 case.
Many would agree that if torture is not the issue in these cases, it must be an issue of perhaps even more prominence, in some other venue. Prior to the revelations of WikiLeaks, the global public was told that cruel and inhumane punishment at Guantanamo Bay, and at Abu Ghraib Prison in Iraq was done under strict control to prevent future attacks on America. But WikiLeaks provided the information that in a vast number of instances, torture was used to produce evidence against suspects already in custody.