Thursday, May 10, 2012

In Trials for Sept. 11 Accused Plotters the Rights of Defendants Are Confused with Requirements for Justice

Trial Should Proceed In Orderly Fashion Even if Defendants Do Not Cooperate

A huge and vexing problem for the United States with respect to those captured and charged with plotting the Sept. 11 attacks is how to prosecute the accused and at the same time preserve the due process that every person accused of a crime is entitled to.  Failure to preserve the rule of law would mean a defeat for the United States, whose process of justice is one of the enemies of the terrorists.

Defendant Khalid - He Has the to Confront the Evidence
If He Gives Up That Right Then He Gives Up
That Right.
At the trial of defendant Khalid Sheik Mohammed and others the defendants are refusing to fully cooperate and are trying to put the process on trial as opposed to the accused.

"This will be a long, hard-fought, but peaceful struggle against secrecy, torture and the misguided institution of the military commissions," James Connell, a civilian defense counsel, told reporters at Guantanamo Sunday.

At Saturday's hearing, he said, the defendants had engaged in "peaceful resistance to an unjust system."  . . .

The session began with Mr. Mohammed and the other defendants ignoring the military judge and refusing to listen to simultaneous Arabic translation through headphones. Col. Pohl then ordered that the translation be amplified through courtroom speakers, ensuring that the defendants could hear but snarling proceedings as each remark in English was followed by the interpreter, sometimes speaking over the lawyers.

One defendant, Walid bin Attash, was brought into the courtroom shackled to a chair after refusing to enter voluntarily, said Col. Pohl. The defendant's lawyer, Capt. Michael Schwartz, said his recalcitrance was a response to long-standing mistreatment.

And in some cases the U. S. is going beyond what is called for to respect the religious beliefs of the defendants.

Cheryl Bormann, a lawyer for Mr. bin Attash, was dressed in an abaya, a loosefitting garment worn by observant Muslim women, leaving only her face exposed, and suggested that women on the prosecution team follow her example. They should dress modestly "so that our clients are not forced to not look at the prosecution for fear of committing a sin under their faith," Ms. Bormann said.

The answer to all of this is simple.  The defendants should be afforded the rights of the accused and it appears are being afforded the rights of the accused.  But if they choose not to accept those rights then so be it.  They should simply be placed in a room where they can view the proceeding on closed circuit television and the trial should continue without their presence. 

The obligation of justice is to give the defendants the opportunity to exercise their rights and to provide them with reasonable but not absolute accommodation of their religious beliefs and practices..  If they choose not to accept those rights, or choose to exploit those rights in a manner to disrupt the legal process then they have forfeited those rights.  If Mr. Walid bin Attash does not wish to be present at his trial, let the trial continue without his presence. 

If the actions to have a trial without the presence or cooperation of the defendants results in the denial to them of some aspect of justice, then it is they, not the judicial system that has caused that denial. 

Common sense needs to be presiding at these trials, so far it seems to be absent.


  1. I considered similar issues when working on habeas corpus petitions as a federal judge's law clerk. I came to the same conclusions.

    I suspect the DPE, or one of the DPEs, is a lawyer with a good grasp of constitutional law.

  2. As usual, TDPE is exactly right.