Terrorist rights advocates believe that Khalid Sheikh Mohammed, the self-described mastermind “responsible for the 9/11 operation from A to Z,” was denied his rights to due process. They want to throw out his confessions, read during a closed-door Combatant Status Review Tribunal hearing held last week at Guantanamo Bay to determine whether he is an “unlawful enemy combatant.” Their rationale for possibly letting Mohammed go is that the confessions were supposedly tainted by the lingering effects of his alleged torture inflicted months or even years ago while he was held in a secret location by the CIA.
Typical in expressing such sentiments was Kenneth Roth, executive director of Human Rights Watch, who objected to the closed door hearing in these words: "We need to know if this purported confession would be enough to convict him at a fair trial or would it have to be suppressed as the fruit of torture?"
This is a pathetic attempt to apply all the protections afforded by the laws of modern civilization to a man who is engaged in a lawless conspiracy to destroy their very foundation. Mohammed was the number three honcho of al Qaeda, whose leader Osama bin Laden declared war on the United States twice during the 1990’s. Mohammed characterized himself as a warrior, saying that "[T]he language of the war is victims." He also said, when asked, that his statements before the Tribunal were not coerced while he was in the custody of the military, whatever abusive interrogation methods he alleged had been used separately by the CIA months or years earlier.
The Combatant Status Review Tribunal hearing is not the trial of his guilt or innocence. It was held to confirm his status as an unlawful enemy combatant who was captured abroad in the course of participating in a fight-to-the-death jihad against us. An unlawful enemy combatant is defined in the Military Commissions Act of 2006 as “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States . . . who is not a lawful enemy combatant.” Unlawful enemy combatants include persons who are part of the Taliban, al Qaeda, or associated forces. It did not take any coercive interrogation to prove the indisputable fact that Mohammed was an al Qaeda leader engaged in hostilities against the United States.
The purpose of detaining Mohammed and his cohorts to date has had nothing to do with determining his guilt or innocence for what would amount to a domestic crime like murder. The purpose has been to protect us against further invasions from a foreign enemy that has declared war on our nation. Our basic right to live our lives in peace without fear of another 9/11 mass slaughter, or even worse, is a more fundamental human right than the right of an individual terrorist suspect to be protected from unpleasant conditions of prolonged confinement. When the lives of our citizens continue to be threatened by an enemy determined to wipe us out if we do not submit to their ways, our government has the moral and legal obligation to use coercive interrogation techniques against fighters like Mohammed and his cohorts to extract intelligence in time to foil another attack. Such psychological techniques, which are far short of physical torture, might legitimately include sleep deprivation, solitary confinement or exploiting "phobias" like the fear of dogs.
The next step after confirmation of his unlawful enemy combatant status, no doubt, is to try Khalid Sheikh Mohammed before another military commission for violations of the law of war. This monster will have more procedural protections than he deserves under the Military Commissions Act, which provides that no accused terrorist “shall be required to testify against himself.” He will have the right to counsel, to present evidence, and to cross-examine witnesses. With some limited exceptions for classified information (which still must be summarized for the defense), the prosecutor must “disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused.” His confessions before the Combatant Status Review Tribunal may be used against him at trial if the military judge finds that the totality of the circumstances renders them “reliable and possessing sufficient probative value,” “the interests of justice would best be served” and the interrogation methods used to elicit the confessions did not “violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.” However, the military judge will not have the last word. Mohammed will have the right to appeal any conviction to the United States Court of Appeals for the District of Columbia Circuit and to the Supreme Court on various grounds, including if he is convicted based on his confessions.
Yet all of these procedural protections for a man sworn to our destruction are not enough for the advocates of terrorists’ rights. They want a full-blown public criminal trial which would inevitably turn into a media circus. A public show trial is a terrorist’s best friend to show off his martyrdom, manipulate public opinion and fuel more recruitment to his cause.
What should happen if Mohammed’s confessions are ultimately thrown out on appeal and there is not enough remaining evidence acceptable under our Constitutional standards to convict him? Should he then be released to return to his bloody jihad? The terrorist advocates would say yes, since there would be no further grounds to hold him. Just imagine the hue and cry on the editorial pages of the New York Times if we tried to detain Mohammed as a continuing military threat during the long duration of the War on Terror.
The best alternative would be to ship Mohammed back to his home country of Kuwait for whatever ‘welcome’ he is likely to get there, out of the eyes of the media and away from the reach of the misguided human rights activists and terrorist legal advocates who are so concerned about his welfare. Indeed, rendition of terrorists like Mohammed back to their Islamic countries of origin sends a message to future would-be terrorists not to count on the protections of our legal system to escape the consequences of their actions under the standards of their own legal systems. Whether their native Islamic countries will give the terrorists a ‘fair’ trial by American standards is of no legal or moral concern to us.
Of course, groups like the ACLU, Human Rights Watch, and Amnesty International will cry foul. Indeed, many of them support a bill, sponsored by Rep. Edward Markey (D-MA), which seeks to take away from the executive branch the authority that has made it possible for the Central Intelligence Agency and other US government bodies to engage in the practice of "extraordinary renditions." 42 co-sponsors joined Markey. Described as a bill to stop the outsourcing of torture, its real effect would be to insource the protection of terrorists’ rights under our legal system, which the terrorists want to hide behind while planning to ultimately destroy it.
The terrorists’ advocates also point to the United Nations Convention Against Torture Article 3 which states that no “[S]tate Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” On May 19, 2006, the United Nations Committee Against Torture (the U.N. body that monitors compliance with the United Nations Convention Against Torture) recommended that the United States stop the practice of rendering prisoners to countries where they face “a real risk of torture.” But the United States Senate ratified this treaty with certain reservations. The Senate chose to interpret the phrase, “where there are substantial grounds for believing that he would be in danger of being subjected to torture,” as used in Article 3 of the treaty, to mean “if it is more likely than not that he would be tortured." The United Nations’ Raporteur on Torture has yet to report on conditions one way or the other in such terrorist homelands as Kuwait, Jordan, Egypt and Saudi Arabia. They cannot say with any degree of confidence that Mohammed would more likely than not be tortured in Kuwait or even that bin Laden (if caught alive) would be more likely than not tortured if returned to his homeland of Saudi Arabia. Thus, if the terrorist’s country of origin provides us with diplomatic assurance that it will not use torture against him and there is no clear systematic pattern of torture used against detainees as certified by the United Nations’ own human rights experts, we have more than met our burden under the treaty when deporting the terrorist to his homeland.
The Supreme Court has created some additional confusion by applying certain provisions of the Geneva Conventions even to stateless terrorist groups like al Qaeda, namely common Article 3 of the Geneva Conventions which requires a regularly constituted court affording all the necessary “judicial guarantees which are recognized as indispensable by civilized peoples”. The Military Commission system established by Congress, with all of the protections discussed above, should easily satisfy this standard. But even the Supreme Court’s solicitude for terrorist suspects went only so far. It did not apply the additional prisoner of war provisions of the Geneva Conventions to terrorists, who deliberately target innocent civilians in violation of the most elementary laws of war. In any case, there is nothing in the Geneva Conventions that could logically argue for preventing the return of a terrorist suspect to his own home country.
The enemy we face represents a pure unconstrained evil force that recognizes no limitation on the bounds of human destruction it is willing to inflict in the name of its perverted cause. All civilized peoples are at risk until this enemy is completely eradicated at its roots. Indulgent regard for terrorist suspects’ so-called rights in these circumstances is self-destructive.
In the timeless words of Machiavelli: “Which respect (for the laws) was wise and good: none the less one ought never to allow an evil to run on out of regard for a good, when that good could easily be suppressed by that evil.”
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