Confessed 9/11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators are to be arraigned at Guantanamo on Thursday before a military commission, ahead of a trial later this year. Pentagon officials like to compare the Guantanamo process to the Nuremberg tribunals that convicted top Nazi war criminals at the end of World War II. But critics say the Nuremberg analogy actually highlights the shortcomings of military justice at the U.S. Naval base.
Alhough not without its own flaws, Nuremberg is generally remembered as having been a fair and careful legal process conducted at a time when many were demanding summary execution for leading Nazis. The legality of the proceedings due to begin at Guantanamo, however against men held in secret CIA prisons where some were tortured before being brought to Cuba has been loudly challenged by critics around the world, not least by the U.S. military lawyers appointed to represent the accused. "Under these circumstances it is impossible to ethically and properly represent our clients," Navy Cpt. Prescott Prince, chief military counsel to Khalid Sheik Mohammed told TIME. "In a capital murder case involving thousands of victims, it is just unbelievable that many members of the defense team have barely been able to meet with their clients, and some not at all."
Asked about Pentagon comparisons of the Guatanamo trials to Nuremberg, Prince responded: "There is no comparison, because none of the top Nazi defendants faced torture, or waterboarding, or other forms of 'enhanced interrogation' or had to be concerned that information elicited under torture might be used against them in a court of law." He noted that in trials for Japanese war criminals following World War II, the U.S. had tried and convicted at least one Japanese officer for having waterboarded a prisoner. The U.S. has admitted that Mohammed was waterboarded in captivity, and many observers, including members of Congress from both parties, have condemned the practice as torture, and illegal.
Mohammed will be arraigned alongside Ramzi Binalshibh, Ali Abd al-Azoz, Ali, Walid bin Attash and Mustapha al-Hawsawi. All are charged with 2,973 counts of murder one for each 9/11 victim and all face the death penalty. The media and families of victims of 9/11 and others will witness the arraignment, either sitting behind a glass barrier in the courtroom or watching via television feed, some of which may not be audible if it involves classified information. Thursday's proceedings will involve the reading of charges, selection of counsel, introduction of members of the court and other formalities. All five defendants will be present and will answer questions from Guantanamo's chief judge, Marine Col. Ralph Kohlman.
The military lawyers representing each defendant recently sought a postponement, saying they had inadequate time to meet with clients some of the attorneys, lacking the necessary security clearance, have been unable to meet with their clients at all. Kohlman denied these requests. Defense lawyers have also told TIME that evidence against their clients has not been turned over by the prosecution, despite a legal requirement that it do so. All of these objections could surface in court on Thursday.
Procedural objections by the defense come amid a wider context of mistrust surrounding the proceedings at Guantanamo. Just this week, relatives of several 9/11 victims released a letter to Susan J. Crawford, Guantanamo's top legal official, saying the facility's due process had been "politicized." They cite the fact that the only family member of a 9/11 victim to be invited to attend the proceedings in person Debra Burlingame has made clear her support for the Bush Administration. Burlingame addressed the 2004 G.O.P. convention, and has publicly praised President Bush and criticized other family members of 9/11 victims who have criticized Bush's actions.
The letter, obtained by TIME, reads in part: "The Defense Department's belated disclosure that Debra Burlingame, a staunch supporter of this administration and the military commission system, was secretly invited to attend the arraignment of Khalid Sheikh Mohammed is but the latest example of a covert, politicized military commission system that has little hope of bringing any legitimate outcome." A Pentagon official has denied that the process is in any way politicized.
Several weeks ago, the former chief prosecutor at Guantanamo, Air Force Colonel Morris Davis, publicly accused senior Pentagon officials of failing to exercise impartiality by rushing high-profile cases to trial, suggesting that this was grandstanding related to the U.S. presidential campaign. Among those criticized was the Guantanamo Convening Authority's chief legal adviser, Brig. Gen. Tom Hartmann, who in a recent interview with TIME denied any undue interference. But another Guantanamo judge found that Hartmann had, in fact, exercised improper influence and banned him from a prominent ongoing trial.
Chief Judge Kohlman last week raised eyebrows by summarily removing Peter Brownback, the longest-serving jurist at the base, from the trial over which he was presiding the case of Canadian Omar Khadr, captured in Afghanistan at age 15, and now charged with killing a U.S. soldier. Kohlman initially offered no explanation for firing Brownback, but this week he issued a statement blaming it on "manpower management considerations unrelated to the Military Commissions process."
Critics have suggested, however, that Brownback may have been fired because of a series of rulings against the prosecution in the Khadr case in particular his recent threat to suspend the trial unless the prosecution turns over Guantanamo logs that might shed light on Khadr's treatment in captivity.
Judge Kohlman also faced criticism in 2007 when he oversaw the plea bargain and release of alleged Australian Taliban militant David Hicks. Hicks was released after Vice President Dick Cheney met with Australia's then Prime Minister John Howard, a close U.S. ally embroiled at the time in a difficult reelection battle, which he eventually lost. Howard reportedly told Cheney that Hicks' continued detention was hurting his electoral prospects. Hicks ultimately pleaded guilty to a single charge, agreed to a gag order concerning his treatment at Guantanamo, and was flown to Austrialia amid charges that politics had decided the case. The Pentagon denied those charges.
These legal controversies suggest that the trial of the man accused of planning the worst terror attack ever on U.S. soil may focus as much on the quality of U.S. military justice as on the crime of 9/11.