The Detainee Dance at Gitmo

David Danzig – Deputy Program Director at Human Rights First – is in Cuba to monitor the proceedings and report back on events as they unfold.

Guantánamo Bay, July 16, 2009: At 1:40 PM the court room was prepared for motions to be heard against five men accused of plotting the 9/11 attacks, except that one of the detainees was talking with his attorney in such a loud tone that it was difficult for the proceedings to begin.

Mustafa al Hawsawi, one of the five so-called “9/11” defendants, claimed that he had been misled about his role in the day’s proceedings and said that he wished to leave before motions even began.

Al Hawsawi’s abrupt departure followed more than three hours of legal wrangling. At issue were questions regarding the detainees themselves. Did they have to attend their own hearings? If they refused, should the staff judge advocate use force to compel them to be in the court room?

Like so many things at Guantánamo related to military commissions, this was unchartered territory where the officials in charge seemed, at times, to be unsure of the rules.

There is no legal precedent to fall back on. This is the first time that the military commissions were dealing with these issues in a conspiracy case involving multiple defendants.

The morning was filled with motions as the defense and the prosecution jockeyed for advantage.

In the strange world of military commissions, where nothing is what an outside observer might expect it to be, the prosecution argued that the court should do what it could to bring all of the accused to the courtroom. Give them a chance to speak for five minutes each at some point during the proceedings, a lead prosecutor in the case pleaded with the court, but don’t allow them to participate in the court’s active business.

No, said David Nevin, a legal advisor to Khalid Sheikh Mohammed. Mohammed, the alleged “mastermind” of the 9/11 plot, is representing himself in these proceedings but chose not to attend the motions that were argued today.

It was Nevin’s view that Mohammed should be allowed to participate in the motions themselves since he was being tried for “conspiracy” and therefore the disposition of the other defendants in the case – were they competent to stand trial? – would have a direct bearing on his standing.

Meanwhile attorneys for al Hawsawi and Ramzi bin al Shibh argued that their clients should not be able to speak if they were to attend. Lawyers for these detainees are arguing that they may not be competent to stand trial, an argument that could be undercut if they began making statements in court.

Got it?

Well, unfortunately the prosecution did not.

When Robert Swann, a lead prosecutor, called the officers in charge of the detention facililty to relay the judge’s decision, he got it wrong. The judge was willing to provide the three detainees who are representing themselves five minutes to speak, but he ruled that the other two defendants would not be allowed to speak. The prosecutor said that all detainees who attended the proceedings would have a chance to speak.

To make matters worse, the officer who manages high value detainees then threatened the detainees that their “privileges” (regular meetings with attorneys and access to a laptop to prepare for their trials) “could be” revoked if they did not attend the day’s hearing. Neither the judge nor the prosecutor suggested in court that this could be the case.

After al Hawsawi left, Ali Abdul Aziz Ali told the court, through his attorney, that he had only come to the court to protect his privileges. He said that he felt like he had been “blackmailed.”

The whole incident took an additional 45 minutes to sort out.

Observers were left scratching their heads.

Why would a system be in place where the jailers and the prosecutor are so intimately linked? Why is it up to the prosecutor to communicate the judge’s orders to the detainees?

And, well, wouldn’t we be better off in federal court where these sorts of snafus were much less likely to dominate the court’s agenda?

At the end of the day, it was unlikely that the cases against the accused could move very far forward this week. Too much depends on changes the Obama administration is mulling to the structure of the commission process.

But what little did happen does not inspire confidence, since even the most basic issues like summoning detainees from their cells for a motion led to mistakes, confusion and frustration.

Throughout the day, the judge and many of the attorneys labored as best they could under a system that is constantly evolving. But at the end of the day many were left wondering if such a complex case might be better off in a more mature setting that is better equipped to handle these issues.

In the last 20 years, U.S. federal courts have handled more than 120 terrorism cases. Federal courts are equipped to try big time terrorism cases– now it is just up to the politicians to recognize that what is happening at Guantánamo is not the best option.

Race to Guilt in Guantánamo Threatens to Taint Justice for 9/11 Attacks

Devon Chaffee – Advocacy Counsel at Human Rights First – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, December 9, 2008: Yesterday's tumultuous military commissions proceedings in the trial of Khalid Sheikh Mohammed and four co-defendants kicked off with a bang. Within the first half-hour, Presiding Army Judge Col. Stephen Henley read aloud a joint letter submitted by the five defendants asking that all motions filed in their names be revoked and requesting the opportunity to plead guilty. They had signed the letter on November 4, 2008—the day Barack Obama was elected president—firing the starting gun in an urgent race against the clock to preserve the ability of the next administration to seek real justice in one of the most important capital cases in American history.

President-elect Obama has made his intention to close Guantánamo crystal clear. On the campaign trail and in his first post-election interview on “60 Minutes,” he repeated that closing the facility was a priority. During his campaign he also committed to opposing the Military Commissions Act, which governs the commission proceedings and which he voted against in September 2006. But if the commissions continue to rush forward, it could hamper the ability of the next administration to bring these cases to trial in ordinary federal courts and to obtain verdicts that all Americans could have confidence are fair and final.

Monday's proceedings were held in Guantánamo's "Expeditionary Legal Complex" or ELC, which, according to the testimony of Cpt. Patrick Michael McCarthy, was designed under close supervision of the commissions' Convening Authority specifically for the trial of the high-value detainees. Observers sat behind sound-proof glass, while the sound system periodically failed and the audio delay—instituted to protect classified information—grew longer and longer.

As the morning session progressed, two things became clear: 1) Judge Henley would not allow two of the defendants—Ramzi bin al Shibh and Mustafa Ahmed Adam al Hawsawi—to enter guilty pleas until they were declared competent to stand trial and 2) it is an open question whether the Military Commissions Act allows for a death penalty sentence in a case where the defendants plead guilty. In a courts-martial proceeding under the Uniform Code of Military Justice, unlike in federal criminal courts, a defendant is not permitted to plead guilty to "an offense for which the death penalty may be adjudged." The rules for guilty pleas in capital cases in the military commissions, however, remain unclear.

Nail-biting prosecutors were noticeably anxious as Mr. Mohammed and Judge Henley went back and forth about the potential death penalty limitations with Mr. Mohammed asking: "If we plea, is it true that we will not be able to be sentenced to death?" After Judge Henley said he could not answer that question, the three pro se defendants—Mr. Mohammed, Walid Muhammed Salih Mubarek bin Attash and Ali Abdul Aziz Ali—indicated that they wished to postpone their pleas, at least until their co-defendants' competency issues were resolved.

But the struggle to keep open the door to bringing these defendants to legitimate justice in our federal criminal justice system is not over. Judge Henley appears intent on pushing forward with the competency questions, denying Mr. bin al Shibh's defense counsel's motion to abate the proceedings and giving defense counsel less than 12 hours to respond whether the prosecution could produce a brief on certain evidentiary issues within 24 hours.

If the judge finds Mr. bin al Shibh and Mr. al Hawsawi competent to stand trial before January 20, then all five may again withdraw all outstanding motions and attempt to plead guilty. This would trigger an inquiry into the circumstances of their plea, which may or may not be resolved before President-elect Obama takes office.

The sense of urgency running through the prosecution team was plain. After the defendants expressed their intention to delay their guilty pleas, Judge Henley said he was inclined to hold off on briefing the death penalty issues until the competency issue was resolved. But when the chief prosecutor, Col. Robert Swann, insisted the government would have the brief ready as soon as it was needed, the judge set a submission deadline of December 21. An exacerbated CDR Suzanne Lachelier, defense counsel for Mr. bin al Shibh, on the other hand, adamantly told the commission that the discovery issues related to the competency claims could not conceivably be resolved before late January.

Allowing the discredited military commissions to move forward in the final weeks of the current administration is a mistake. President-elect Obama will need all available tools to responsibly close the detention facility. And closing the facility is critical to repairing the damage the unfair and inhumane detentions have caused to the United States’ reputation as a leader in humane treatment and due process standards. The commissions should not be rushing forward to conclude cases that could obstruct the ability of our next president to restore the moral authority of the United States and to seek real justice for those who commit crimes of terror.

Translation Problems Hinder Military Commission Proceedings

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 24, 2008: It is a fundamental precept of American justice that an accused defendant must understand the proceedings against him. It is similarly fundamental that, when a defendant speaks during those proceedings, the court and jury must accurately hear and understand, and the record must accurately capture, what the defendant says. And it is fundamental that a defendant must be able to understand the proceedings so that he may assist in his defense. Each of these principles is being violated in the military commission proceedings at Guantánamo Bay.

In criminal proceedings in federal district court, all interpreters must be qualified to interpret court proceedings contemporaneously. Federal court interpreters interpret facts and complicated legal concepts in real time. And, in my experience, federal court interpreters rarely have difficulty keeping up with the normal pace of proceedings or doing their jobs. When they do, the proceedings come to a halt, and competent interpreters are brought in. But this week in the military commission proceedings against the five men facing capital charges for allegedly participating and planning the September 11 attacks, it hasn’t worked that way.

Over the last two days, on too many occasions to count, interpreters could not keep up with events in court, or incorrectly interpreted what was being said. At least some of these interpreters -- who are shielded from public view and whose identities and credentials are kept secret -- are simply not up to their tasks. On Tuesday, defendants, defense lawyers, and defense interpreters (who have the task of facilitating lawyer-client communication) consistently objected that the interpreters had lost track of or inaccurately interpreted the proceedings. At one point, one defendant’s statement was interpreted into English as the nonsensical: “In the beginning of the timing of the laws I said there is no difficulties base [sic].” At another point, in a moment reminiscent of Monday night’s enlistment of help from defendant Ramzi bin al-Shibh’s four co-defendants to secure his voluntary appearance in court, defendant Ali Abdul Aziz Ali (who speaks excellent English) corrected the interpreter’s version of defendant Mustafa Ahmed Adam Al Hawsawi’s statement. Ultimately, it seemed, the court interpreter changed his or her interpretation to agree with Ali. In yet another instance, “top secret” was interpreted as “very private.” In a setting where classified information dominates, such an error completely misrepresents the proceedings.

Defense lawyers are aghast. At a post-hearing press conference Tuesday night, Major Jon Jackson, counsel to Al Hawsawi, described himself as “extremely troubled by the translator/interpreter problems” and accused the government of trying the 9/11 capital cases “on the cheap.” Civilian counsel to Al Hawsawi, Nina Ginsberg, estimated that her client did not understand 25% of what was said in court that day. Ginsberg further stated that, according to the defense team’s interpreter, one-half of what Al Hawsawi said in court was not accurately interpreted. And it was not as if Al Hawsawi was attempting to communicate on trivial topics. In an extended colloquy with Military Judge Marine Col. Ralph Kohlmann, Al Hawsawi – who, unlike some of the other 9/11 defendants, seems genuinely to be considering having a lawyer represent him – attempted to ask probing questions to Judge Kohlmann about the duties and obligations of defense counsel, the contrasting dynamic inherent in pro se litigation, classified information and discovery, and attorney-client privilege. Because he and the judge were speaking two different languages without comprehensible interpretation, the discussion led nowhere. Thus Al Hawsawi was left uninformed about his fundamental choice whether to accept appointed counsel or represent himself, and a chance to overcome a barrier plaguing these proceedings – the ability to get defendants to trust their appointed counsel – was lost.

In an attempt to rectify the situation, Al Hawsawi’s attorneys have requested a stay of the proceedings to allow the government to hire better interpreters. Their motion-- which is not publicly available due to Byzantine public access procedures here but was described during Tuesday night’s press conference--includes an affidavit from the defense team interpreter detailing a series of material errors in interpretation that have occurred. The motion to stay has not been granted; instead the defense teams have been instructed to raise their hands when the interpretation process goes awry. Exasperated, defense counsel finally asked the judge on Tuesday to order the government to prepare daily transcripts in English and Arabic. This motion is unlikely to be granted, and frankly would be unnecessary if the interpreters could simply do their jobs.

The judge’s other purported remedy is to constantly remind the lawyers and the defendants to speak slowly. Thus the proceedings sometimes occur in a halting, robotic incantation. The judge and most defense lawyers often speak in clauses, not sentences or paragraphs. Aside from sometimes being difficult to understand, even when spoken in English, these parts of the proceedings are deathly slow and inefficient. Even when spoken at half-speed, though, the interpreters still sometimes get it wrong.

Other international law tribunals handle this issue far more effectively. At Tuesday night’s press conference, Major Jackson pointed out that, in the International Criminal Tribunal for the former Yugoslavia, computers are used to provide real-time translations that place side-by-side transcripts in both the official language of the proceeding and the defendant’s native language. Jackson stated that the military commissions could have used a similar system, developed at The College of William & Mary, but did not.

If this problem is not fixed in Guantánamo, the proceedings will not be accurately interpreted. The defendants will not understand the proceedings. The court and the jurors will not accurately be told, and the record will not accurately capture, what the defendants say. And the defendants will not meaningfully participate in their defense.

The result would be a travesty.

Bin al Shibh Appears in Court but Legal Uncertainties Loom

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 23, 2008: Yesterday, Military Judge Marine Col. Ralph Kohlmann held a pretrial hearing for the five defendants facing capital charges in connection with the September 11 attacks. One of the defendants, Ramzi bin al Shibh, refused to leave his cell to attend the hearing. By the end of the day—largely occupied by legal wrangling over how to make bin al Shibh appear—Judge Kohlmann ordered that bin al Shibh be brought to court the following day, by force if necessary.

The hearing revealed an odd internal split among government lawyers. The prosecution’s position was that bin al Shibh should be forced to appear. But the detention facility commander (and JTF Gitmo lawyers) apparently reasoned that bin al Shibh could not be forced to attend absent a court order, thus shifting to the court the obligation–and the blame and accountability–for any “forcible extraction” of bin al Shibh from his cell. The defense, seeking to avoid a “forcible extraction,” asked the judge to adjourn all proceedings against bin al Shibh pending a competency evaluation. They assert he has severe mental health issues, which have been exacerbated by the use of psychotropic drugs and by his extreme confinement conditions, and which they further imply may stem partly from the torture bin al Shibh alleges he endured.

In a bizarre turn of events reflecting the ad hoc nature of the military commission system, bin al Shibh’s four co-defendants were enlisted in the court’s effort to secure his presence. The court approved a request by the lead defendant, Khalid Sheikh Mohammed to write a note to bin al Shibh. Ultimately, all four of bin al Shibh’s co-defendants wrote separate notes, each signed by all the others. The notes urged bin al Shibh to come to court, pointed out that his absence had slowed the proceedings (in fact, the judge suggested that if bin al Shibh persisted in refusing to participate, he would consider severing his case from the others’), told him that all five defendants should remain together in one case, and advised him to come to court voluntarily in order to avoid forcible removal from his cell.

In federal court, criminal defendants who refuse to come to court may be compelled to appear. Bench warrants may be issued for defendants who have been released on bail, and federal marshals – on their own or at court order or suggestion – may secure the appearance of defendants in pretrial detention, whether or not the defendants wish to appear. But in Guantánamo, where rules of law are created each day, a defendant’s co-conspirators are enlisted in the effort to secure his appearance.

But the comparison between federal courts and military commissions may not be tenable in this context. Compelling a defendant to appear in federal court is justified because defendants receive the full gamut of procedural and substantive protections, and they are not typically subjected to abusive interrogations or extreme conditions of confinement. But in Guantánamo—where many detainees have made allegations of torture and abuse, and some have experienced near-total isolation for almost seven years—compelling a defendant’s appearance in court has a different connotation.

Bin al Shibh’s attorneys suggest in their written pleadings that his fragile mental condition may be the result of torture. The Bush Administration has confirmed the use of “alternative” interrogation techniques on the high-value detainees held in secret CIA custody. In addition, reportedly a former detainee who was held in the cell next to bin al Shibh during his detention in Jordan alleges that bin al Shibh accused Jordanian officials of subjecting him to electric shock, sleep deprivation and forced nudity. If some or all these allegations about bin al Shibh’s treatment are true, then compelling him to come to court – likely transported in shackles and wearing a black hood over his head – may be so mentally and psychologically traumatic that the court resorted to enlisting the “cooperation” of his co-conspirators in encouraging him to voluntarily appear.

The peer pressure exerted by bin al Shibh’s co-defendants was effective. Bin al Shibh voluntarily reported to court early this morning and sat with his co-defendants without wearing shackles or handcuffs. In fact, he used his appearance to defend his mental competence and to unleash a tirade against his attorneys, accusing them of lying to him and ignoring his wishes.

Bin al Shibh’s outburst highlights a central problem with these proceedings. Although Judge Kohlmann may have the power to force bin al Shibh to appear in court, he cannot compel bin al Shibh to accept counsel. Given the length of time bin al Shibh has been detained, and the allegations of torture he has made, it should come as no surprise that his attorneys may have difficulty gaining his confidence and trust.

Undermining American Justice

Sahr MuhammedAlly – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, June 5, 2008: At the arraignment today of five defendants accused of coordinating the September 11 attacks, the focus was not on the defendants’ alleged crimes, but on the trampling of due process and the rule of law, which are the foundations of American justice.

Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek bin Attash, Ramzi Bin al Shibh, Ali Abdul Aziz Ali (aka Ammar al Baluchi), and Mustafa Ahmed Adam al Hawsawi are alleged to have directly aided, planned or financed the attacks. All are charged with offenses that could carry the death penalty.

The Rush to Arraign and its Effect on Selection of Counsel

Judge Marine Colonel Ralph Kohlmann began the proceedings by asking Mohammed questions about choice of counsel. Civilian defense counsel David Nevins, who had only met with Mohammed for 5 hours two days prior to the arraignment, strenuously objected to the court’s inquiry. He explained that he had not had enough to time to meet with Mohammed to build trust and explain the gravity of the decision regarding representation in capital cases. He also questioned the defendants’ competency. Civilian defense counsel for Al Shibh, Tom Durkin, stood up to echo the same concerns and request a postponement of the arraignment. Judge Kohlmann cut off Nevins and Durkin – two experienced trial lawyers who have handled death penalty cases – telling them to sit down and be silent as he had already made his rulings.

The September 11 Five, and other prisoners held by the CIA, were subjected to enhanced interrogation techniques, including waterboarding, exposure to extreme cold (including induced hypothermia), stress positions, extreme sensory deprivation and overload, shaking, striking, prolonged sleep deprivation, and isolation, among others. CIA director Michael Hayden in February 2008 admitted that Khalid Sheikh Mohammed and two other CIA prisoners were subjected to waterboarding. The September 11 Five, and other CIA prisoners, were subjected to enforced disappearances, and held without access even to the International Committee of the Red Cross (ICRC) for several years until they were brought to Guantánamo on September 6, 2006.

Now their first contact with lawyers is with men and women in military uniform. The uniform creates hurdles in building rapport and gaining trust to facilitate attorney-client relationships. Detailed military counsel were appointed for many of the defendants only in the last month and have spent very few hours with their clients due to delays in getting security clearances. A military counsel for Hawsawi was only granted a security clearance the night before the hearing. Civilian defense counsel have spent even less time with the defendants; most met their clients just two days prior to their arraignment. Yet Judge Kohlmann refused to grant a basic request for an extension. Defense filed two motions for continuances prior to June 5, and both were denied. During the court proceedings, military and civilian defense counsel repeatedly requested continuances. Each request was denied.

The American Bar Association (ABA) guidelines recommend two lawyers with death penalty experience and a mitigation expert in capital cases. At one point, when the judge asked a skeptical al Baluchi about choice of counsel, Ammar al Baluchi asked the court, “If my case is a capital case shouldn’t I have capital defense team before my arraignment?” Judge Kohlmann responded, “This is not a MCA (military commission act) rule.”
Judge Kohmann asked each defendant whether he had read the charges. A few had, but some had not. Each defendant was asked whether he had examined the evidence. Mohammed’s answer was not heard by the public as the audio was turned off. Attash said that some papers were “secret” but he did not know what “secret means.” Al Baluchi said that he has seen the evidence if it was “the information that was forced out of me.”

Al Baluchi told the court that, “Everything that has happened here is unfair and unjust. . . The government is talking about lawyers free of charge. The government also tortured me free of charge all these years. Lawyers are decorative they cannot talk on our behalf. . . But the court already made decision that is behind the desk. This is a stage play. I don’t want anyone to bother with my case.”

When the judge asked each defendant whether he understood that this is a capital case and could result in death, Mohammed and Attash said that they wish to be martyrs. Hawsawi appeared confused and kept asking whether the judge wanted to execute him and said, “you expect me to face death? You expect me to accept punishment when I have not looked at the charges?”

Pressure to Reject Counsel

Prior to arriving at the courtroom, the human rights observers had heard that the defendants, who have not communicated with each other for years, were allowed to interact for 15-20 minutes before the hearing began. Throughout the day, the defendants were gesturing and talking to each other. The impact of this was significant. One by one, each defendant decided to reject legal representation.

Defense counsel Army Major John Jackson, who has been assigned to represent Hawsawi, objected to allowing the defendants to talk to each other and suggested that this had influenced his client’s decision to opt for self-representation. Maj. Jackson told the court that he had been building a rapport with his client, who wanted legal representation, but a short time into today’s proceedings Hawsawi began having second thoughts and elected to represent himself. Maj. Jackson told the court that “the defendants have been communicating with each other throughout this proceeding leading my client to change his position. I do not believe this is voluntary.” Maj. Jackson told the court that his interpreter overheard Mohammed tell Hawsawi, “So, you’re in the Army now?” He further stated that “this is the most prejudicial use of joinder” he has seen and will move to separate Hawsawi’s case from the other co-conspirator defendants. At the press conference later, Maj. Jackson said he had spent 20 hours building rapport with his client, but Hawsawi’s demeanor changed in the courtroom. At 5:00 p.m., Judge Kohlmann—after more than 5 hours into the session—finally ordered the defendants to stop talking.

Lt. Cmdr. Brian Mizer, who represents Al Baluchi, similarly told the court that his client had agreed to accept legal representation, but in court Al Baluchi elected to represent himself.
Judge Kohlmann held off on determining whether Hawsawi and Shibh’s decisions were voluntary. Shibh’s lawyers told the court that they had learned at 9:00 pm on June 4 that Shibh was taking psychotropic drugs, which could affect his cognitive ability to make his decision on election of counsel.

Judge Kohlmann allowed military counsel to act as standby advisors to Khalid Sheikh Mohammed, Attash, and Al Baluchi. It is unclear what role civilian defense counsel may play. It is also unclear how classified information will be shared with defendants who are representing themselves. In fact, at the end of the day, when the judge was instructing the prosecution and military counsel about the introduction of classified information, he also instructed Mohammed, Attash, and Al Baluchi. It was one of many bizarre moments today.

Treatment is a State Secret

Under the government’s rules, everything that the defendants say is presumptively classified. Anything regarding their treatment while in CIA custody or in Guantánamo is also classified. Thus Judge Kohlmann ordered a 20 second delay in the audio feed transmission to persons outside the courtroom today, including the viewing gallery where the NGO observers sat, and special viewing sites.

In one instance, Ammar al Baluchi, said “If I was given a lawyer the first day when they they arrested me…” but the audio was cut off for 90 seconds. It sounded like he was about to describe the circumstances of his capture but that was determined to be classified.
When Ramzi bin al Shibh, started explaining to Kohlmann why he had been taking ''psychotropic drugs'' since arriving at Guantánamo, the sound went off for about 4 minutes. A few minutes later, when he told the judge that its not easy to explain the reasoning behind the drugs wihout the details, the audio was cut off for about 90 seconds.

Cognizant of what can and cannot be said, Khalid Sheikh Mohammed told the judge, “I do not mention the torturing. I know this is a red line.”

* * *

I was in New York on September 11, not far from the World Trade Center, and I saw the buildings collapse. Today we saw the alleged co-conspirators of the September 11 attacks. I, however, left the courtroom dismayed about a justice system that is fraught with questions about fairness.

The trials are taking place in a forum that allows the use of statements obtained through cruel and inhumane interrogations, so long as the interrogation took place prior to 2006, and the military judge finds the evidence “reliable” and “in the interests of justice.” There is an absolute ban on the introduction of involuntary statements in the civilian criminal justice system and the court-martial system. The trials are in a forum that is not independent and subject to political pressure as publicly stated by former military commission prosecutors. The trials are in a forum that significantly undermines the rule of law and is yet another factor since September 11 that has eroded America’s moral authority and credibility.

The American justice system is as much on trial as the September 11 Five. Today’s hearing was not a victory for the American way.