Fair proceedings?

The survivors and families of those killed in the September 11 terror attacks don't have to wait any longer. After years of preparation, the arraignment against the self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed finally takes place on May 5. Four other Guantanamo prisoners are also charged with aiding and planning the attacks.

All of the defendants face the death penalty, should they be found guilty. In the eyes of the US public, there is hardly any doubt that such a sentence would also serve justice. Many people around the world are likely to have a similar opinion. After all, the attacks in New York and Washington were perfidious, monstrous and, in this century, unequaled in their atrociousness.

But this trial is not only about justice for the victims. It is also about the question whether justice in the fight against terror can be served using legal means. The military judges have to show that also in a special proceeding like this legally unobjectionable evidence can be provided to convict the alleged perpetrators. Confessions extorted using torture may not be allowed to play a role, just as little as second-hand testimony can have any evidentiary value.

The burden of Guantanamo

The setting alone for the proceeding poses a difficult burden for the US government. Guantanamo has not only become a symbol of the particular form of justice introduced under former president George W. Bush after the 9/11 attacks. The prison camp was also a place where serious human rights violations took place - at least in the first years of its existence. Waterboarding, for example, can be mentioned: a torture method which makes a prisoner feel like he is drowning.

When Khalid Sheikh Mohammed was transferred to the military prison in Cuba in 2006, he had already been in US custody for three years. He had been held in secret special prisons, where he was questioned using extreme methods, including waterboarding.

Mohammed's confession, which he made at the end of 2008, appears to a large extent worthless against this background - the more so as it accompanied his provocative demand to be executed as a martyr. Much of his testimony has proven to be untrue in the meantime. That is why the proceedings took so many years to get under way.

Obama's success and failure

US President Barack Obama attempted to have the case moved to a civil court in New York and the prisoners transferred to the US mainland for good reason. But Congress blocked his efforts. The mayor of New York Michael Bloomberg also refused, referring to the high costs involved to ensure the special security measures such a proceeding would have made necessary.

So the trial is taking place on a US military base after all. President Obama has thus given in to his political instinct. In an election year and more than 10 years after the attacks, it appears to him that a proceeding with shortcomings was better than no proceeding at all.

If the course stays on schedule and the men receive the expected sentence, Obama could book a further achievement in his to date successful battle against the terror of al Qaeda. First the capture and killing of Osama bin Laden, then the sentencing of the 9/11 masterminds. There's hardly more for a US president to offer in this area. Already now, 56 percent of US voters attest Obama a successful anti-terror policy. In terms of economic policy, though, American voters give him significantly worse scores.

Tougher measures necessary

Even if one is willing to accept the particular circumstances of this proceeding: the military lawyers have to identify those parts of the defendant's testimony extorted under torture and remove them from the burden of proof. This includes clarifying exactly what happened in the secret prisons of the Bush years. It must be verified whether the principal witness for the prosecution, the al Qaeda defector and former Mohammed aid Majid Khan, is credible enough.

Ahead of the proceedings, the defendants' lawyers complained of strongly limited visitation rights for their clients. They were also not allowed to bring preparatory documents into the military prison. This contradicted legal principles. A long list of psychotropic drugs, which have been administered to the main defendant for a longer period of time, has led to legitimate doubts about Mohammed's legal capacity. Legal experts fear that particularly strict confidentiality provisions could remove a high degree of transparency from the trial.

But if the United States wants the special interrogation techniques of the Bush era to be forgotten, it has to impose particularly strict standards on this proceeding in Guantanamo. Otherwise, more than just a stale aftertaste would remain in the case of a conviction - the Europeans in particular will anyway not be able to accept the death sentence as a matter of principle.

Author: Daniel Scheschkewitz / sac
Editor: Andreas Illmer