On April 4, New York Times writer Charlie Savage headlined, "In a Reversal, Military Trials for 9/11 Cases," saying:
After months of indecision, the Obama administration "will prosecute Khalid Shaikh Mohammed (KSM) and four other (suspects) accused of plotting the Sept. 11 terrorist attacks before a military commission and not a civilian court, as it once planned."
In fact, candidate Obama pledged:
"As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions...."
On January 22, 2009, he signed an Executive Order (EO) to close Guantanamo in one year.
More promises made. More broken. Obama's record is near-perfect showing nothing he says can be believed.
On April 4, Attorney General Holder broke the news, saying:
"In November 2009, I announced that (KSM) and four other individuals would stand trial in federal court for their roles in the" 9/11 attacks....After consulting with prosecutors from the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue (was) federal court. I stand by that decision."
Not at all as months of inaction gave "Members of Congress" time to "intervene and impose restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue."
"(T)hose restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer....We must bring the conspirators to justice."
On April 4, a Department of Justice press released headlined, "Justice Department Refers Five Accused 9/11 Plotters to Military Commissions," saying:
"As the indictment unsealed today reveals, we were prepared to bring a powerful case against the 9/11 defendants in federal court, and had this case proceeded as planned, I'm confident our justice system would have" prevailed.
A 10 count, 80 page indictment accuses them of:
-- "conspiracy to commit acts of terrorism transcending national boundaries;
-- acts of terrorism transcending national boundaries;
-- conspiracy to commit violent acts and destroy aircraft;
-- violence on and destruction of aircraft;
-- conspiracy to commit aircraft piracy;
-- aircraft piracy;
-- murder of US officers and employees;
-- destruction of property by means of fire and explosives; and
-- conspiracy to kill Americans."
Charged were Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih bin Attash, Ramzi bin al-Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed al-Hawsawi.
Commenting on Holder's announcement, ACLU Director Anthony Romero said, "The attorney general's flip-flop is devastating for the rule of law."
In response to Holder's announcement, an ACLU press release said:
"In a move that undermines civil liberties and the rule of law, the Obama administration today announced that it will prosecute the (9/11) suspects....in the Guantanamo military commissions system."
Executive Director Anthony Romero added:
Using military commissions "is completely wrong. There is a reason this system is condemned: it is rife with constitutional and procedural problems and undermines the fundamental values that have made us a model throughout the world for centuries....The attorney general's flip-flop is devastating for the rule of law. (These trials) will not be seen as legitimate. This is not justice."
Moreover, alleged evidence against the suspects was obtained under torture, ruled constitutionally inadmissible by the Supreme Count in Brown v. Mississippi (February 1936), saying:
"The rack and torture chamber may not be substituted for the witness stand."
It cited an earlier Fisher v. State (November 1926) High Court decision, stating:
"Coercing the supposed state's criminals into confessions and using such confessions so coerced from them in trials has been the curse of all countries. It was the chief iniquity, the crowing infamy of the Star Chamber (the notorious 15 - 17th century English court), and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country wherever the court is clearly satisfied such violations exist, (and) it will refuse to sanction such violations and will apply the corrective."
In other words, confessions and alleged evidence obtained under torture are unreliable, suspect, and inadmissible in court. In addition, according to Mark Denebeaux and other Seton Hall University Law Professors, unclassified evidence obtained through FOIA requests revealed evidentiary summaries from 2004 military hearings on whether 517 Guantanamo detainees were enemy combatants. They showed that:
-- at most, few Afghan Guantanamo prisoners committed violent acts;
-- 95% were seized by bounty hunters paid $5,000 per claimed Taliban and $25,000 for alleged Al Qaeda members; and
-- 20 were children, some as young as 13, but all were brutally tortured as later revealed.
Serious questions thus remain regarding the claimed guilt of these suspects, including the alleged mastermind, Khalid Shaikh Mohammed. He had:
-- no lawyer;
-- was isolated at black sites for over two years, including the secret "Dark Prison" near Kabul International Airport, infamous for its absolute lack of light combined with brutalizing torture;
-- another north of Kabul called the "Salt Pit," where in 2002, a detainee was stripped naked and left chained to the floor in freezing temperatures until he died;
-- while in Afghanistan, Mohammed was hog-tied, stripped naked, hooded, and abused repeatedly in numerous ways, including being:
-- kept in a prolonged state of sensory deprivation for months;
-- waterboarded numerous times;
-- chained naked to a metal ring in his cell in a painful crouch in intense heat and extreme cold;
-- bombarded with deafening sounds round the clock for weeks;
-- thrown against walls forcefully, a procedure called walling;
-- suspended from the ceiling by his arms so his toes barely touched the ground;
-- beaten with electric cables;
-- given electric shocks; and
-- forced to endure a variety of stress positions for extended periods, causing excruciating pain until;
-- in 2006, he was sent to Guantanamo where his torture continued, included being waterboarded over 183 times. The other four suspects received similar treatment.
An ICRC report said high-level Al Qaeda prisoners were repeatedly tortured, especially Mohammed for his alleged mastermind role. To extract a confession, he was told: "We're not going to kill you. But we're going to take you to the brink of your death and back."
As a result, whether he and the others plotted 9/11 must seriously be questioned given that international law is clear and unequivocal. Torture is prohibited at all times, under all circumstances, with no allowed exceptions. Evidence so obtained is unreliable and inadmissible as explained above. Yet, it will be used, making a proper defense impossible, especially from court-appointed lawyers, picked to give prosecutors an open field to convict.
In federal court, however, confessions obtained under torture are inadmissible. Yet, according to the Military Commissions Act (MCA), evidence obtained through coercion is allowed. As a result, 9/11 suspects face potential execution without appeal if convicted which is virtually certain.
MCA, in fact, grants sweeping police state powers, including that "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause for action whatsoever....relating to the prosecution, trial, or judgment of a military commission (including) challenges to the lawfulness of (its) procedures...."
MCA scraped habeas protection for domestic and foreign state enemies, citizens and non-citizens alike, saying:
"Any person is punishable....who....aids, abets, counsels, commands, or procures," and in so doing helps a foreign enemy, provide "material support" to alleged terrorist groups, engages in spying, or commits other offenses previously handled in civil courts. No evidence is needed. Those charged are guilty by accusation.
Other key provisions include:
-- denying international law protection;
-- letting the president convene "military commissions" at his discretion to try anyone he designates an "unprivileged enemy belligerent," detaining them indefinitely in secret;
-- denying speedy trials or any at all;
-- letting hearsay and secret evidence be used; and
-- denying due process, destroying human dignity, mocking the rule of law, and establishing the principle of kangaroo court justice for anyone the executive targets with or without evidence.
In other words, the rule of law is null and void. Whatever the president says goes. No one any longer is safe. Obama is as lawless as Bush. America is a police state, making everyone potentially vulnerable.
Stephen Lendman lives in Chicago and can be reached at firstname.lastname@example.org. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.