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9-11 TRIALS/ Between national security and human rights

Expert on criminal law JIMMY GURULÉ discusses the trial of Khalid Sheik Mohammed and the various issues surrounding it, including the procedures of the military court and the use of torture.

(Infophoto) (Infophoto)

Khalid Sheik Mohammed was tortured 183 times with waterboarding. The terrorist who proclaimed himself the mastermind behind the September 11 attacks appeared before the Tribunal at Guantanamo for what has been called the "trial of the century". Along with him are four other defendants held responsible for terrorism, massacres and murder in violation of the laws of war. George W. Bush publicly justified the methods of torture, saying it was needed to save thousands of lives. After him, Obama changed the rules requiring that statements obtained through waterboarding not be used during the trial. Ilsussidiario.net interviewed Jimmy Gurule, an expert in criminal law from Notre Dame University and a former undersecretary of the Bush administration, where he worked to trace the assets that finance terrorists.

How can the government balance protecting the American people from terrorists and upholding human rights in the September 11 trials?
It is a very controversial issue both in the United States and internationally. I think that there have been some substantial improvements in the Military Commission and its procedures that were enacted in 2009 compared with the original Military Commission that was established by President Bush. Despite those enhanced procedures, there are still some concerns about whether the procedures afford the defendants full due process protections, specifically, there are some concerns about the admissibility of hearsay evidence, a more relaxed standard for the admission of hearsay evidence that is permitted under the Military Commission than what is required in civil criminal courts. One of the other major concerns is the question of the admissibility, or disclosure of evidence that implicates national security concerns.

What can the military court do in those circumstances?
There are some procedures in place where, if the government prosecutor maintains that the disclosure of certain evidence would threaten U.S. national security, then the judge has the authority to attempt to sanitize the evidence by permitting a summary of the evidence or permitting substitute statements, or certain statements deleted from the documents that threaten security. The problem is that the defendant, or the defense attorney, is not permitted to see those statements. The proceeding is an ex-parte proceeding, where just the judge and the prosecutor would participate, therefore the defendant is not in a position to adequately challenge the government’s claim that the evidence is central to national security. Thus, I think that the process has come a long way in terms of balancing national security and civil liberties, but I still think there are some sensitive issues that remain to be resolved. On these issues, I think we are going to have to wait and see how the procedures evolve during the trial.

Would a civil court be better than a military one?