9/11 terror trials delayed by allegations of torture

German philosopher Friedrich Nietzsche once averred that “Everything the State says is a lie, and everything it has it has stolen.” While many modern Americans are at a minimum consumed with the popular notion of “American Exceptionalism” or in its more potent form, American jingoism which concludes that any and every endeavor undertaken by the American government in the name of defending freedom and liberty is justified, such belies the fact that right before our very eyes, the very American government that has fought for freedom and democracy across the globe has committed deplorable, if not criminal, acts in pursuit of these ideals.

Last week, I was privileged to travel with a contingent of journalists, lawyers and family members of individuals killed during the 9/11 terror attacks to Guantanamo Naval Base in Cuba, where Khalid Sheikh Mohammad and four alleged co-conspirators await trial before a military commission for their alleged roles in implementing the attacks in which 2,976 individuals were killed in New York, Washington and western Pennsylvania.

{mosads}As a patriotic American, one who clearly remembers the events of 9/11 and the sense of despair many of us felt while watching our fellow Americans leap to their deaths from the burning World Trade Center towers, I truly understood and still understand the need to vanquish members of terror cells whose aim is to foment jihad against America and her citizens.

Indeed, having perused many of the legal documents and confessions of some 9/11 suspects this past week, their words provide a chilling glimpse into the level of contempt that they and their ilk feel toward the West in general, and specifically the United States. Mohammad, during one of countless interrogations at the hands of the U.S. government, denounced the “materialistic Western mind” as he recounted how a major operation like 9/11 could be planned and executed “with simple primitive means” as opposed to some large-scale bureaucracy.

But the question in the back of my mind as I read Mohammad’s words was: How did such confessions come to fruition? To be frank, the proverbial elephant in the room is torture at the hands of the U.S government, in its efforts to extract information from Mohammad and other alleged conspirators.

Earlier this month, President Obama blithely stated that “we tortured some folks” in reference to a Senate Intelligent Report that will soon be released that may chronicle in detail government-sanctioned torture. Most Americans are unaware that when captured in 2003, Mohammad, like many of the detainees at Guantanamo Bay, was held for years in undisclosed locations where detainees claim they were beaten, subjected to waterboarding and denied food and sleep by CIA operatives.

Some Americans will note Mohammad and his confederates’ allegations and dismiss the same as the price of waging a terror war against America, but the flaw in such dismissals is that our nation is one of laws, and included within the same is our deference to the Geneva Convention of 1949 and its later protocols which, in its Article 3, proscribes “violence to life and person” as well as “[o]utrages upon personal dignity, in particular, humiliating and degrading treatment.”

The problem, however, is that when the War on Terror began a few short months after 9/11, the George W. Bush administration focused on the distinction within the Geneva Conventions that the rules applied to nations as opposed to individuals or terror cells like Al Qaeda. As a result, individuals who were captured during the first months of war in Afghanistan in late 2001 and 2002 were transported to Camp X-Ray in Cuba, a facility that is a series of steel cages similar to pens found in zoos, leaving prisoners exposed to the elements. It was here that the first allegations of torture arose; however, the U.S. government closed Camp X-Ray later in 2002 and over time, constructed a series of seven prisons that are similar to typical American state and federal facilities.

But intense interrogations, alleged torture and the deprivation of legal counsel for suspects continued under the Bush administration until a series of Supreme Court rulings held that captured suspects were entitled to legal counsel as well as the ability to challenge their detention status in federal courts.

The problem is that in the time since, the promises of the Obama administration to close the Guantanamo prison camps have yet to be actualized. Even more crucially, Mohammad and the other 9/11 suspects who were finally charged in 2012 are nowhere near close to a trial date on the merits of the charges against them.

What complicates the case further is that during hearings this past week, the military commission considered arguments from defense counsels that the FBI had infiltrated the defense team of attorney Jim Harrington, lead counsel for alleged conspirator Ramzi Bin Al Shibh, and that the threat of federal probes, the continuing inability of defense counsel and their teams to access their clients at Guantanamo, and the continuing deprivation of rights to their clients casts a pall over the efficacy of the legal proceedings. In fact, my concern as a federal and state criminal defense attorney is that even if a conviction is eventually sustained, the torture used to extract evidence, the lies told to cover up such torture, and the surreptitious efforts of the FBI to thwart attorney-client privileges will render the verdicts suspect.

Hobbs is a trial lawyer and contributor to The Hill. Follow him on Twitter at @RealChuckhobbs.