Which is more terrifying: the imminent threat of an attack on American soil or a steady but intangible loss of civil liberties in the name of national security?
This lesser-of-two-evils debate will take center stage in the controversial “terror trials” of Guantanamo detainees that kicked off Wednesday in New York with jury selection in the trial of Ahmed Khalfan Ghailani. The Government’s decision to try the Guantanamo detainees in civilian court rather than a military tribunal provoked outrage, especially in the case of Khalid Sheikh Mohammed, the self-described “mastermind of 9/11,” whose trial is set to begin October 4th. Critics say that those accused of terrorist acts are not entitled to the rights and protections of the U.S. legal system and worry that the location of the trials effectively trains a bulls-eye on New York City, inviting another attack. Civil libertarians and the Obama administration argue that the civil proceedings mark a welcome departure from the oft-criticized extra-judicial handling of detainees by the Bush administration.
The military detention center at Guantanamo Bay became a lightning rod for political debate in 2001, when it was first used to detain those captured in Afghanistan. The use of the facility is widely opposed by the international community, particularly the indefinite detention of individuals not yet charged with a crime. The Bush administration attempted to establish military commissions to try the Guantanamo detainees, which were struck down by the Supreme Court in 2006 in the case of Hamdan v. Rumsfeld. In a 5-3 ruling, the Court rejected the Administration’s contention that the commissions could be authorized by the President under his wartime commander-in-chief powers and held that neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the commissions. A further blow was struck to the Administration’s handling of detainees in Boumediene v. Bush, in which the Supreme Court held that at least some process was due, even to non-citizen alleged terrorists. On September 30th, Fawzi Khalid Abdullah Fahad al-Odah, a Kuwaiti man captured in Afghanistan who claims he was an aide worker, filed an appeal in the Supreme Court challenging federal court standards for determining whether prisoners can fight their detention in court.
Barack Obama campaigned in part on a pledge to atone for the Bush Administration’s alleged abuse of civil liberties by closing Guantanamo and abiding by the constraints of the U.S. legal system. Despite some progress, the Guantanamo Bay facility remains open. Earlier this year the Obama administration allowed Omar Khadr, a Canadian citizen captured in Afghanistan when he was 15 years old and later detained at Guantanamo, to be tried by a military tribunal for throwing a grenade that killed a U.S. Special Forces Medic. Human rights groups oppose the trial and have lobbied for Khadr to be expedited back to Canada, but the trial is set to resume October 18th.
Ghailani stands trial for his role in the 1998 bombings of the American embassies in Tanzania and Kenya. Ghailani was captured in 2004, held in secret C.I.A. prisons for several years, and then transferred to Guantanamo in 2006. In July of this year, a federal judge found that the five years Ghailani spent in detention did not amount to denial of the right to a speedy trial. Federal prosecutors charged Ghailani with conspiracy in the bombings that left 224 people dead and many more injured.
The most recent development in the Ghailani case is the decision on Friday by U.S. District Judge Lewis Kaplan to admit statements by Osama bin Laden as evidence of the conspiracy to kill Americans. Jurors will be allowed to hear bin Laden’s “fatwas” and interviews he gave to ABC and CNN. The trial is scheduled to begin next Wednesday, after the judge rules on whether a key witness, the man who sold Ghailani the dynamite, will be allowed to testify.
Stay tuned to Amicus for more coverage of the “terror trials.”