U.S. confident about trials of Sept. 11 suspects

Commentary:

“There’s no such thing as a do-over when you have an abuse of fundamental rights.”

Actually, people who aren’t US citizens enjoy no such fundamental rights (e.g., as habeus corpus) therefore, the argument as to whether the methods of interrogation were ‘illegal’ fall under international law and the issue as to whether or not Gitmo is de facto US property is moot.

To the first point, international law is created and maintained via the UN, a body or charter of nations (most without permanent seats on the council) that enforces basic standards of conduct. Briefly, the UN was established to legitimize US hegemony after WWII and to institutionalize channels to air grievances. The law [of the UN] reigns by fiat of US hegemony; therefore, not only may the US renege, but the UN could easily be subverted by a major US defeat in war, rendering it [much less hegemonic than it is currently]. In the main we should be considerate of the big picture:

The US should not be a slave to its own laws such that as a consequence of a wooden interpretation of the letter [of the law], we impose upon the spirit, thereby creating a situation where everyone ends up worse off in the end (e.g., we lose a war due to lack of intelligence gathering ability because we’ve disemboweled our CIA from using potent-as-necessary techniques for interviewing terror-plot suspects).

Article:

WASHINGTON: Bush administration officials said they were confident that charges against six suspected members of Al Qaeda would hold up against expected defense claims that the cases were based on unreliable statements obtained using harsh interrogation methods.

The officials confirmed Tuesday that the Justice Department and the Pentagon, aware of probable legal challenges involving possible mistreatment of prisoners, began an extensive effort in late 2006 to rebuild the cases against the six men using what officials called “clean teams” of agents and military investigators.

By interviewing the prisoners again, and reassembling other evidence against them, the prosecutors could present evidence in court that would be harder for defense lawyers to challenge. But some legal experts said that approach might not defuse defense arguments that the initial investigations were tainted.

“No amount of redoing the interrogation would clean that up,” said Samuel Issacharoff, a New York University law professor. “There’s no such thing as a do-over when you have an abuse of fundamental rights.”

The chief military prosecutor for detainees at Guantánamo Bay in Cuba, Colonel Lawrence Morris of the army, declined to discuss the details of how prosecutors would deal with questions about the treatment of captured terrorism suspects. But, Morris added, “we will take very seriously our burden to present trustworthy evidence on which a panel can rely” in reaching a verdict.

Dozens of FBI agents have spent hundreds of hours at the Guantánamo detention center interviewing potential witnesses and suspects. In effect, they have recreated intelligence files, thus avoiding information that might be tainted because it was obtained during interrogations using harsh techniques. The legal tactic was described Tuesday by The Washington Post.

The CIA confirmed last week that one of the six defendants, Khalid Shaikh Mohammed, considered the chief plotter of the attacks of Sept. 11, 2001, was subjected to the technique known as waterboarding while in CIA custody. Waterboarding is considered by many legal authorities to be torture.

In addition to Mohammed, military prosecutors filed charges Monday against Mohammed al-Kahtani, sometimes described as the “20th hijacker,” who was denied entry into the United States in August 2001; and four men who officials believe played logistical roles in the plot, Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi and Walid bin Attash. The charges, for which prosecutors are seeking the death penalty, include conspiracy, murder, terrorism and providing material support for terrorism.

The so-called clean-team investigators, who had not been briefed on earlier interrogations by the CIA using harsher tactics, adopted nonconfrontational interview techniques. One government official said some of those charged this week spoke openly about their roles in the Sept. 11 plot.

The investigators applied many of the same standards in Guantánamo that are commonly used in criminal cases in the United States. But unlike suspects in criminal cases, the Guantánamo detainees were not allowed to have a lawyer present during the interviews.

Agents involved in the interviews were chosen for their language and interviewing skills, law enforcement officials said. They spent many hours studying their assigned suspects and consulting with behavioral scientists before designing interrogation strategies.

While CIA interrogations of the same suspects, sometimes using harsh physical pressure, were aimed largely at preventing more attacks, a government official said the clean-team interviews tried to obtain information about past plots in order to build a prosecution.

Kenneth Wainstein, chief of the national security division at the Justice Department, said in a telephone interview that federal prosecutors assigned to the Guantánamo cases had been centrally involved in the investigation since 14 suspects alleged to be senior Qaeda operatives were moved to Guantánamo in September 2006.

Jameel Jaffer, a lawyer with the American Civil Liberties Union, said the law setting up military commissions bans any evidence obtained by torture. The judge would decide whether to admit information produced using coercive techniques short of torture, Jaffer said.

“Every time they try to introduce a piece of evidence,” he said, “the defense lawyers are going to say, ‘This piece of evidence is unreliable’ because of coercion.”

William Glaberson and Mark Mazzetti contributed reporting.

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