This Day in Infamy: Gitmo’s Birthday

Happy Birthday, Gitmo

Much has occurred [1] today [2] with regards to Guantanamo Bay and many decisions are yet to come [3].

But there is another milestone worthy of note: Today marks the eighth anniversary of the creation of the legal foundation for the prison and the second-tier justice system established to try terrorism suspects there.

On Nov. 13, 2001, President George W. Bush signed what has become known as Military Order No. 1 [4] in what he termed a Global War on Terrorism. Without informing his national security adviser, his secretary of state, his chief of staff or his communications director, Bush approved [5] what would appear three days later in the Federal Register as: "Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism."

The few people inside the former administration who knew about the order were instrumental in its creation, including former Vice President Dick Cheney, his lawyer David Addington, former Secretary of Defense Donald Rumsfeld, former Attorney General John Ashcroft and a young, and then unknown, lawyer inside the Justice Department named John Yoo [6].

The order created a separate track of justice for any foreign citizen picked up on a global battlefield with the Pentagon serving as jailer, prosecutor and judge.

The findings, drafted in secret [5], also laid the way for many of the asserted war powers that the Bush administration later relied on.
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9/11 Trial Poses Unparalleled Legal Obstacles

WASHINGTON — In a move both politically and legally risky, the Obama administration plans to put on trial the professed mastermind of the Sept. 11 terror attacks and four alleged accomplices in a lower Manhattan courthouse.

The venue for the biggest trial in the age of terrorism means prosecutors must balance difficult issues such as rough treatment of detainees and sensitive intelligence-gathering with the Justice Department's desire to prove that the federal courts are able to handle terrorism cases.

Attorney General Eric Holder announced the decision Friday to bring Khalid Sheikh Mohammed and four others detained at Guantanamo Bay, Cuba, to trial in a courtroom barely a thousand yards from the site of the World Trade Center's twin towers they are accused of destroying.

Trying the men in civilian court will bar evidence obtained under duress and complicate a case where anything short of slam-dunk convictions will empower President Barack Obama's critics. U.S. civilian courts prohibit evidence obtained through coercion, and a number of detainees were questioned using harsh methods some call torture.

Holder insisted both the court system and the untainted evidence against the five men are strong enough to deliver a guilty verdict and the penalty he expects to seek: a death sentence for the deaths of nearly 3,000 people who were killed when four hijacked jetliners slammed into the towers, the Pentagon and a field in western Pennsylvania.

"After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York – to New York," Holder repeated for emphasis, "to answer for their alleged crimes in a courthouse just blocks away from where the twin towers once stood."

Holder said he decided to bring Mohammed and the other four before a civilian court rather than a military commission because of the nature of the undisclosed evidence against them, because the 9/11 victims were mostly civilians and because the attacks took place on U.S. soil.

Lawyers for the accused will almost certainly try to have charges thrown out based on the rough treatment of the detainees at the hands of U.S. interrogators, including the repeated waterboarding, or simulated drowning, of Mohammed.
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