Khalid Sheik Mohammed’s attorney has his hands full.
Idahoans who know Boise criminal defense attorney David Nevin, a quiet, well-spoken, extremely thoughtful fellow, will instantly identify with the challenges he confronts in a courtroom in Cuba as he attempts to mount a defense for the world’s most notorious terror suspect. Nevin, a University of Idaho law grad, would be the first to acknowledge that the sense of fairness that is supposed to be at the heart of our adversary-based judicial system, coupled with a commitment to the “rule of law,” is at the very core of what Americans mean when they think about the concept of justice.
Yet, the circus-like atmosphere that prevailed last Saturday during the long awaited arraignment of KSM and three other defendants seems to have little to do with the American system. “The system is a rigged game to prevent us from doing our jobs,” Nevin complained at the end of the 13 hour proceeding last weekend conducted before the military commission that will, probably years from now, put Khalid Sheik Mohammed on trial.
Specifically, attorneys for the terror suspects can’t have anything like a normal attorney-client relationship with the men they are supposed to be representing. Everything that KSM says, even to his lawyer, is apparently being considered by the government to be a state secret. And torture, specifically the allegation confirmed by the CIA that KSM was waterboarded 183 times, and that torture may have led to a confession is, so far, off-limits in the proceedings.
“The government wants to kill Mr. Mohammed to extinguish the last eyewitness to his torture,” Nevin said, as reported by McClatchy’s Carol Rosenberg.
Nevin is living out the highest calling of the American criminal justice system; the notion that everyone – even the man accused of plotting to bring down the twin towers – deserves a fair trial, a chance to hear all the evidence against him and to introduce evidence, including evidence of torture, if it may help his defense. The trouble for Nevin is simply that he’s been asked to supply an adequate defense for his client in an environment of secrecy and possible torture, while the awful wounds of 9-11 still haven’t begun to heal.
Here’s the real rub: the government of the United States wants to bring these guys to justice – we all do – but for largely political reasons has determined it cannot trust the normal, open American judicial process to work as it should. A decision by Attorney General Eric Holder to conduct the legal proceedings in a New York federal courtroom ignited a firestorm of protest, the Congress got involved and the Obama Justice Department backed down. The military commission with its secrecy, determination to protect “state secrets” and Kafkaesque rules is now what David Nevin and the other lawyers at Gitmo must deal with.
One of the toughest critics of the Gitmo process is the now-retired Air Force Colonel and one-time terrorist case prosecutor, Morris Davis, who resigned his commission and retired rather than go along with a Pentagon ruling that waterboarding was permissible in dealing with terror suspects.
“After a decade of starts and stops and revisions and failures, the system is already presumptively discredited,” Davis said in an interview recently with the Los Angeles Times. “That the apologists for the commissions say they are essentially the same, or virtually the same, or nearly the same as federal court — the fact that they have to put a qualifier on it proves it is not the same.”
Davis predicts that KSM will eventually be executed, a martyr’s death he wants, after wringing the maximum propoganda value from the proceedings. “If we execute him, we will be giving him exactly what he wants,” Davis said.
Our government’s zeal to protect secrets almost always leads to bad outcomes. The desire to protect the secrets tends to pervert the very process that the secret allegedly protects. In the Gitmo cases, the most likey outcome is conviction of KSM and the others for the unspeakable crimes of September 11, 2001 and, while that might feel like justice it also might look to the rest of the world as an outcome derived by means of a distorted and unfair process.
The fundamental strength of the United States, including a justice system that has rules, procedures and methods to protect even the guilty, ends up looking to our enemies like an updated Stalin-era show trial. If the 9-11 mastermind is guilty – and I have no doubt he is – then show the world the evidence in open court. Try him as the suspected criminal he is, not some super human hoarding great secrets, and use the strength of the American justice system to show just what kind of man he is.
We must have a system of justice that is better than those individuals to whom we apply it. It’s doubtful these commissions will pass the test of history and let’s hope we don’t regret that failure to live up to our own best standards.