President Obama has horrified his liberal base by deciding that the trial of Khaled Sheikh Mohammed and his comrades accused of conspiracy in the mass murder on 9/11 should be tried in a military commission in Guantánamo. To the Left, Guantánamo and military trials are a toxic brew.
Guantánamo is still in business, despite Obama’s promise to close it more than a year ago, because he, like Bush before him, has been unable to find countries to which he can safely send all Guantánamo’s inmates. Either they are too dangerous to be released or their home countries are too dangerous for them. But the important thing is that Guantánamo has changed from the initial shocking images of Muslim prisoners clad in orange suits and locked in wire cages soon after 9/11. Now it is probably the best-run detention centre in the world and with more habeas corpus rights for detainees than anywhere else. The magnificent Benjamin Wittes of the Brookings Institution, author of two excellent books on the law and the war, and master of the invaluable www.lawfareblog.com, urges Obama to embrace Guantánamo and to make it “a symbol not of excess, not of lawlessness and evasion of judicial review but of detention under the rule of law”.
As for the military trials to be held there, these are not “kangaroo courts” as critics of the US Government maintain. American military law dates to 1775 and thanks to many recent opinions from the Supreme Court and new legislation by both the Bush and Obama Administrations, military courts offer defendants almost as many rights as in federal courts, while also protecting national security issues more effectively.
The Nuremberg Military Tribunal, where my father was chief British prosecutor, had flaws but it remains the gold standard for dispensing justice to men who waged evil war. Obama has, rightly, praised it. But he should also praise America for the fact that the al-Qaeda men in Guantánamo will have far more rights than the Nazis in Nuremberg. In the Guantánamo military court, the accused will be presumed innocent, his guilt will have to be proved beyond reasonable doubt, he will be represented by independent counsel, civilian and military, he will be protected from double jeopardy, he must see any exculpatory evidence, and he will have the right of appeal all the way through the US federal court system to the Supreme Court.
The delays have been deeply damaging but, at last, almost ten years after the crime, justice will be given to the victims. The US Government should now make sure that the Khaled Sheikh Mohammed trial is visibly well run, with the accused well prosecuted, well defended and well judged by first-rate civilian and military lawyers in full of view of the press. I am confident that will happen. The US should be proud of its system.