For six Guantanamo Bay detainees, the future looks bleak – and likely lacking a fair trial. The Pentagon announced this week that it has charged six men with war crimes in connection with the Sept. 11, 2001 terrorist attacks and plans to seek the death penalty. Rather than conducting a just investigation in preparation for a just trial, though, new revelations indicate that the government sanctioned the torture of one detainee to obtain evidence for its shady trial. But as bad as things look, this is the perfect opportunity to restore U.S. international prestige by showcasing to the world that even America’s most vilified enemies deserve a fair trial.
In the first trials of their kind in the post-Sept. 11 era, the six Guantanamo detainees are being tried before the military commissions created by Congress in 2006. Unlike more transparent civilian courts, the military commissions at Guantanamo don’t afford the accused nearly as many rights – a problem that is pending a U.S. Supreme Court decision. Among the abuses, these courts allowed defendants to be excluded from their own trial. They also once accepted evidence acquired through torture, a ruling that could become an issue again due to the use of waterboarding on Khalid Sheikh Mohammed, the suspected mastermind behind the attacks and one of the defendants in this case. Furthermore, the Pentagon wants to set a precedent by seeking the death penalty.
But pressing for capital punishment without a fair trial is just one of the Pentagon’s failings in this case; it looks like it will also fail to conduct a fair trial. If the trials are run the same way that the previous tribunals at Guantanamo have been run, these will be nothing more than kangaroo courts. Such a blatant violation of habeas corpus is just another step in the slow deterioration of the administration’s credibility.
Then there’s the use of so-called criminal evidence against the accused, acquired through torture techniques during interrogation at Guantanamo Bay, including the infamous waterboarding method. Waterboarding itself is not new. First documented during the Spanish Inquisition, it continues to be a way to force victims into compliance with interrogators by simulating drowning – a practice that hardly leaves room for doubt about whether it’s torture or not.
The legal controversy surrounding waterboarding has exploded since the recent revelation that it is being used against the detainees at Guantanamo Bay. Despite being considered an illegal torture tactic by U.S. generals in the Vietnam War, it was never legally deemed torture. So the Pentagon manipulated that ambiguity to legitimize and sanction its use. No matter that, up until this point, the question of whether waterboarding was an act of torture was never really a question at all, but an accepted consensus that it was.
Paired with the military commission’s lack of transparency, the Pentagon’s behavior on this issue leaves the administration with a powerful decision to make. It can continue to torture when interrogating detainees for sham military tribunals, stripping them of basic rights and possibly resulting in continued – and even intensified – disdain from the global community. Or it can acknowledge the illegality of waterboarding on the grounds that it is and always has been a method of torture; throw out any evidence obtained through torture; and grant the detainees their right to a transparent, just trial in civilian court.