It is deeply disturbing that the United States government intends to prosecute and seek the death penalty for six detainees held at Guantánamo Bay using a flawed and fundamentally unfair military commissions system. Those accused of planning the 9/11 attacks should be charged and brought to justice before a legitimate court of law, not executed by the government after a sham trial that makes a mockery of our American system of justice and our commitment to due process.
The reputation of the U.S. has been tarnished throughout the world since the Bush administration replaced our time-tested criminal justice and military justice systems with a regime of military commissions. These commissions have been beset with ethical and legal problems, including a 2006 Supreme Court decision that struck down the system established by President Bush as unconstitutional.
As an observer of the first military commission proceedings in 2004, I can testify to this system's ignominious shortcomings. Among other failings, the military commissions permit the admission of coerced evidence that may have been obtained through practices condemned throughout the world as torture, including the abhorrent practice of waterboarding. Indeed, CIA Director Michael Hayden confirmed last week that one of the men who will be tried, Khalid Sheikh Mohammed, was waterboarded by CIA agents during his interrogations. Coerced evidence and "confessions" obtained through torture are hardly credible. Sentencing a person to death on the basis of such evidence violates our Constitution and our American values.
The military commissions system is also plagued by a lack of transparency. Key information used in these proceedings has been withheld from the public, precluding the possibility of fair trials and keeping the American people in the dark.
In addition, the military commissions system is profoundly ill-equipped to handle such complicated cases. Almost four years after its inception, this morally and legally disastrous system has yet to complete a single trial, while terrorism suspects who have been prosecuted within the criminal justice system -- which has procedural safeguards to protect national security information -- have received lengthy prison sentences.
Furthermore, existing concerns about fairness and due process are multiplied in capital cases involving detainees who have been tortured and imprisoned for years without access to counsel. This system's flaws are so egregious that any outcome will be suspect and widely regarded as illegitimate.
Guantánamo is a shameful tragedy -- a stain that will forever mar America's historical commitment to fairness, due process and the rule of law. The Bush administration could have charged and tried individuals accused of involvement with terrorist activity in the criminal justice system or under our existing military justice system governed by the Uniform Code of Military Justice. Instead, the Bush administration created this legal quagmire -- one that is incompatible with fundamental American values and has undermined our legacy as an international beacon of human rights and civil liberties.
In the words of General Colin Powell:
"[W]e have shaken the belief that the world had in America's justice system by keeping a place like Guantanamo open and creating things like the military commission. We don't need it, and it's causing us far more damage than any good we get for it....
[If] it was up to me, I would close Guantanamo -- not tomorrow, but this afternoon. I'd close it."