6 Gitmo prisoners could face 9/11 charges (Updated)

By Rick Moran

Government sources are saying that a sweeping case involving as many as 6 detainees at Guantanamo, charged with conspiracy in the 9/11 attacks, may be in the offing:

The charges, to be filed in the military commission system at Guantánamo Bay, Cuba, would involve as many as six detainees held at the detention camp, including Khalid Shaikh Mohammed, the former senior aide to Osama bin Laden, who has said he was the principal planner of the plot.

The case could begin to fulfill a longtime goal of the Bush administration: establishing culpability for the terrorist attacks of 2001. It could also help the administration make its case that some detainees at Guantánamo, where 275 men remain, would pose a threat if they are not held at Guantánamo or elsewhere.

Officials have long said that a half-dozen men held at Guantánamo played essential roles in the plot directed by Mr. Mohammed, from would-be hijackers to financiers.

But the case would also bring new scrutiny to the military commission system, which has a troubled history and has been criticized as a system designed to win convictions but that does not provide the legal protections of American civilian courts.

Democrats and Republicans like John McCain have opposed the idea of military tribunals. And it would be problematic putting some of the 9/11 conspiracists on trial in civilian court because their confessions were obtained using methods that some lawyers have called illegal.

The stakes are huge; do we create a new class of prisoners, not recognized as POW's because they are basically stateless, granted limited rights rather than constitutional protections, and ultimately too dangerous to the security of the United States to ever let go?

Neither side in this debate has granted the other's arguments legitimacy which is unfortunate. The left accuses Bush of "shredding" the constitution while the right accuses liberals of wanting to equate the terrorist's crimes with that of any common criminal. The Supreme Court has weighed in several times, muddying the waters even more while Congress has abdicated its responsibility to address the issue intelligently.

I think a fair minded person could be troubled by some aspects of the Bush policy - not the least of which is the refusal to allow a defendant to face his accuser in all cases since much of the evidence has been gathered through top secret interrogations of Kahlid Sheik Mohammed among others. At the same time, the idea of granting these terrorists the full panoply of constitutional protections seems ludicrous, even suicidal.

In a less partisan time with an opposition not deranged with hate for this president, some kind of compromise perhaps could have been achieved. But the military apparently plans to go ahead with at least one trial based on the military justice system. I'm sure it will be watched closely by both sides and it may become a political issue during the election.

UPDATE: Tom Lifson weighs in:

I would add that fighting a global religious movement lacking state status probably requires a brand new category of detainee who would lack the protections of prisoners of war, not to mention constitutional guarantees. My argument is that an inferior status is merited by the danger of stateless fanatics, unconstrained by a state’s need to deal with other states on a reciprocal basis. This asymmetric warfare paradigm requires new procedures for states, which are accustomed to fighting one another.

To Rick's worry about the Bush policies, I would say that the key safeguard has to be in finding some sort of definition that clearly marks who is and is not subject to this new inferior status. Such definitions could get very sticky indeed. Think Adam Gadahn.