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Globe Editorial

Capital cases in kangaroo courts

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February 25, 2008

EARLIER this month, the Bush administration decided to seek the death penalty against six suspects in the Sept. 11 plot - and to do so in the kangaroo courts that it calls military tribunals. The tribunals' limits on defendants' access to evidence and other shortcomings make them a mockery of US justice under any circumstances. To use them for death-penalty cases against defendants such as the alleged mastermind of Sept. 11 is to invite international condemnation.

The tribunals are hardly the only option. US attorneys in federal criminal courts have successfully prosecuted a rogues' gallery of terrorists, from the shoe bomber Richard Reid to the Sept. 11 conspirator Zacarias Moussaoui. Against that record, the tribunals have handled just one case, and that ended in a guilty plea without a trial.

Announcement of the planned trials of the six brought a word of caution from Colonel Steven David, the chief military defense lawyer for Guantanamo detainees. He said he does not have lawyers available to handle the cases, especially not lawyers experienced in capital-punishment cases.

David said that, because the tribunals have not handled a single trial, there are several questions looming over the proceedings. One is how to handle statements obtained under coercion or torture - a vital issue, since the military has acknowledged the waterboarding of one of the defendants. Also unclear is how much access defendants and their lawyers will have to all the evidence.

Military lawyers have said that in many cases the defendants have been re-interrogated without coercive methods and have provided substantial evidence in their cases. If that is so, it makes even stronger the argument that all the cases should be heard in federal court, or at least in military courts-martial, which also have high standards of jurisprudence.

Last week, a new critique of the tribunals came from the former chief prosecutor at Guantanamo, Colonel Morris Davis. Davis, who quit his job last year after his superiors would not commit to excluding evidence obtained during waterboarding, said he would testify for the defense in the trial of Salim Ahmed Hamdan, a driver for Osama bin Laden but not one of the six Sept. 11 defendants. The colonel said he would testify about political interference in the tribunals, including a statement by William Haynes, the Pentagon's general counsel, that any acquittals of terrorism suspects at Guantanamo would make the United States look bad.

The Pentagon denies Haynes made the statement, but Davis's testimony will inevitably ensure that US standards of justice - and not just terrorism defendants - will be on trial in any tribunal proceedings. The administration can avoid that by bringing charges against terrorism suspects in the venue where they belong: a federal criminal court.

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