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Thursday, January 5, 2012 - 12:30pm

Sept. 11 Case A Litmus Test For Military Commissions

The long-awaited trial of five men accused of helping plan the Sept. 11 attacks is scheduled to begin early this year in a revamped trial process at Guantanamo Bay, Cuba.

Initially, Khalid Sheikh Mohammed and four other men charged with planning the attacks were going to be tried in a New York federal court, but congressional opposition forced the Obama administration to reverse course.

Trying the men at the naval base in Cuba has been a controversial issue. The Obama administration has pointed to the hundreds of successful terrorism convictions in U.S. civilian courts as proof that federal courts can handle terrorism cases. Critics of that approach say that terrorists are leveling acts of war against the U.S. and therefore should stand military trial, as war criminals.

The charges against Mohammed and his alleged co-conspirators Walid bin Attash, Ramzi bin al-Shibh, Ali Aziz Ali, and Mustafa al-Hawsawi have yet to be finalized. The men are expected to be formally arraigned on terrorism and other charges in a military commission trial at Guantanamo in the next few months.

The person most associated with pushing to get Mohammed and the others into a military courtroom is Republican Sen. Lindsay Graham of South Carolina.

"The reason I want a military commission trial is it balances our national security needs against the rights of the accused better than a civilian court," Graham told FOX News in April 2011, when the when the Obama administration announced that Khalid Sheikh Mohammed would stand trial at Guantanamo.

"We're at war," he added. "He did not rob a liquor store, he attacked our country."

Prosecutors have recommended that the Sept. 11 trial be a capital case, which could bring the death penalty.

Proving The System's Legitimacy

A quick tour of the main courtroom where the alleged plotters will be tried makes clear how important the case has become to the military commissions system.

The military literally built a courthouse especially for the Sept. 11 defendants. The room is enormous about 50 feet long with six long conference tables dotted with computer monitors. There is one table for each defendant and his legal team, with an extra row for overflow legal counsel.

Matthew Waxman, a professor at Columbia Law School, was in charge of detainee affairs during the Bush administration.

"2012 will be a big year for military commissions," Waxman said. "The U.S. government has several goals that they are trying to achieve. Obviously they want to achieve successful convictions, but they also want to prove that the military commissions system is a legitimate one."

During the Bush administration, military tribunals were criticized as unfair. Human rights groups said the commission rules seemed stacked against the defendant. Hearsay evidence, for example, was admissible in court, as was information obtained through torture. The perception of unfairness became so rife that U.S. allies began refusing to turn over terrorism suspects if they would be forced to stand trial at Guantanamo.

The Obama administration initially wanted to close Guantanamo, scrap the Bush-era military commissions, and bring detainees to the U.S. to stand trial in civilian courts.

When Congress made that virtually impossible, the administration tried to revamp the military commission rules. The Sept. 11 case will be one of the first big cases to put those Obama changes to the test.

"This is now the Obama administration taking ownership of military commissions, saying we've improved it," said Waxman. "They are basically saying: We've corrected the problems of the Bush administration, and we're now going to use this as a tool in combating terrorism."

Doubts Remain

Raha Wala, an advocacy counsel at Human Rights First, argues that the Obama administration hasn't fixed what ails the military commissions.

"The military commissions are broken," said Wala. "And I think, certainly in the public eye, 2012 is a make-or-break year for the commissions. We're going to have extreme scrutiny on these processes and we're going to see both the prosecutor and the defense testing these commissions on very basic issues."

Very basic issues like attorney-client privilege, for example. Just days ago, the military prison commander at Guantanamo Bay issued new rules regarding mail, essentially allowing the prison staff to read the correspondence between military commission defendants and their lawyers.

That means prison authorities would be able to review drafts of legal motions or evidence that lawyers are trying to share confidentially with their clients. The prison commander said the new rules are necessary for safety and security on the base.

But to some observers, it seemed like yet another example of how some of the basic rules governing military commissions have still to be worked out. Attorney-client privilege has already been litigated and set in stone in civilian courts. It is a subject for debate in military commissions. The issue is expected to come up in a hearing for the alleged mastermind of the USS Cole bombing later this month.

"There are a lot of doubters out there who see military justice and the military commission system as tainted or illegitimate," said Waxman. "The Obama administration wants to turn around that perception."

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