The U.S. Defense Department said Monday it will ask for the death penalty for six high-value targets at Guantanamo Bay, including the alleged mastermind of the Sept. 11 attacks, Khalid Sheik Mohammed. The legal advisor to the military commission overseeing the Guantanamo Bay cases, Brig. Gen. Thomas Hartmann, said the men will be charged with conspiracy and murder “in violation of the law of war.”
One of the contentious issues in the case will be the presentation of evidence gleaned from coerced and “enhanced” interrogation tactics. The U.S. Central Intelligence agency admitted recently to using the simulated drowning technique known as waterboarding against KSM while he was held on secret detention facilities in eastern Europe at allegedly at Guantanamo Bay. Many observers equate waterboarding with a form of torture, which the U.S. repeatedly says it does not do. U.S. President George Bush permitted the CIA to use the tactic and CIA director Gen. Michael Hayden testified before Congress that he was unsure whether waterboarding fit the legal definition of torture. Regardless, Congressional legislation outlining the proceedings for the military tribunals at Guantanamo Bay allows the use of evidence derived from interrogations considered “extraordinary.”
Also at issue is the use of the death penalty. The United States remains among the lone advanced nations currently using capital punishment in its criminal justice system. Thought the U.S. has not executed anyone for violating the military codes of warfare since the 1960's, it is not unreasonable that Washington will seek it out, particularly against KSM. The past experience with high-profile uses of capital punishment, notably the execution of the former Iraqi President Saddam Hussein, suggests the United States does not have a particular benign record when it comes to the practice. Any death sentence must meet the scrutiny of civilian appeals court, and presumably such a case would make its way to the Supreme Court.
KSM's record must also be mentioned here. KSM confessed repeatedly to bringing the plot to al-Qaida chief Osama bin Laden in the late 1990's. The Sept. 11 plot may have been an offshoot of the famed Oplan Bojinka plot that involved the assassination of Pope John Paul II, among others, and the simultaneous detonation of 11 commercial aircraft. He also confessed to beheading Wall Street Journal reporter Daniel Pearl in Pakistan shortly after the Sept. 11 attacks. Sept. 11 was his baby and KSM set out in various testimonies to describe himself as the preeminent terrorist mastermind. His confessions and boasting led some analysts to call much of his testimony simply delusional statements of grandeur. Undoubtedly, he confessed to the Sept. 11 in many well documented cases, but bringing evidence before a war crimes tribunal seeking his death should be taken with a certain degree of caution, especially considering the use of coerced testimony. This is not meant as a sympathetic statement, only a precautionary one.
Finally, Washington's success with the military tribunal at Guantanamo Bay is checkered to say the very least. It has been repeatedly admonished by international reviewers and the United States Supreme Court. One observer expressed great caution at the announcement of the death penalty convictions, saying Washington has been unable to handle even the simplest of cases. For example, the military sought a life term Australian native David Hicks, but was forced to reduce the term to nine months following a plea agreement and demands from the Australian government.
This is far from over, but it may be a turning point in the long awaited closure of Guantanamo Bay. If the government wins its conviction in the military tribunal, the cases are inevitably slated for the civilian court system on review, which is what many observers, including this one, have called for in the first place. Stay tuned.
