True Confessions? The Amazing Tale of Khalid Shaikh Mohammed

JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says the sweeping Guantanamo "confessions" of al Qaeda leader Khalid Shaikh Mohammed rival the scope of those made in the Stalinist purge trials of the 1930s, and should equally prompt us to question the legal process in which they were made...


Students of the Stalinist purges of the 1930s will recall the astounding confessions made in open court by the accused persons. They had been severely tortured over weeks and months. But they showed up in court without external marks of torture. With all apparent voluntariness, they admitted subverting the Five-Year Plans that would have provided the Soviet people with necessary food items. They sabotaged factories, making sure the production lines were inefficient. They managed to import inferior metals so that Soviet tanks and automobiles would fall apart after a few months’ use. They infiltrated the Soviet Army and through dint of their persuasiveness, convinced the foot soldier that it was absurd to risk his life defending a dictatorial government. In short these accused persons, briefly in court on their way to the firing squad, took responsibility for everything that had gone wrong for the past two decades in the Union of Soviet Socialist Republics.

So why is it today that no one draws the connection between the Soviet purge trials and the confession of Khalid Shaikh Mohammed? Mohammed said that he had been tortured by his American captors. No one contradicted his assertion. Then he went on, with a straight and sincere face, to take responsibility for a long list of crimes recently perpetrated.

Mr. Mohammed personally decapitated “the head of the American Jew, Daniel Pearl, in the city of Karachi, Pakistan,” he testified. He must have been on an overnight flight from South Korea, where he personally identified targets “such as American military bases and a few night clubs frequented by American soldiers.” Perhaps it was on that flight that he planned the “Shoe Bomber Operation to down two American airplanes.”

The busy Mr. Mohammed planned, financed, surveyed, trained, and followed up the operations to destroy American military vessels and oil tankers in the Straits of Hormuz, the Straits of Gibralter, the Port of Singapore, and the Panama Canal. On a side trip to the Philippines, he masterminded the assassination attempt against Pope John Paul II.

What about the Big One, namely, the crash into the World Trade Center Towers on 9/11? Mr. Mohammed was responsible “from A to Z,” he said. He also was responsible for the earlier attack on the World Trade Center in 1993.

This person really got around; you’ve got to give him credit for that. Maybe he had a job as a chef aboard Air Force One; he didn’t say. But he did manage to get all the way to Bali, Indonesia, where he supervised the infamous nightclub bombing that killed many British and Australian nationals.

At least he was arrested before he managed to carry out a few of his plans, such as assassinating President Carter (Mohammed surveyed and financed this assassination plan), and blowing up Library Tower in California, the Sears Tower in Chicago, several suspension bridges in New York, Heathrow Airport in London, the Canary Wharf Building, New York Stock Exchange, the Plaza Bank in Washington State, and last but not least, the Empire State Building in New York City. It’s a good thing the latter was averted as it would have drained all the drama out of the remake of King Kong.

Anything else you want to say for yourself, Mr. Mohammed? Why yes, he replies. Don’t forget my responsibility for the Filka Island Operation in Kuwait that killed two American soldiers, the destruction of numerous nightclubs in Thailand, planning the destruction of buildings in the Israeli city of Elat by using Saudi airplanes, planning and financing for the destruction of American embassies in Indonesia, Australia, and Japan, the bombing of the hotel in Mombasa that is frequented by Jewish travelers, and planning, surveying and financing to hit several nuclear power plants in the United States. And . . .

O.K., Mr. Mohammed, just ask your lawyer to hand over the complete list. Do you have any explanations for the Court?

Yes, “not I’m making myself hero when I said I was responsible for this or that. If America they want to invade Iraq they will not send for Saddam roses or kisses, they send a bombardment. This is the best way if I want. I’m American enemies.”

It gives me a warm feeling that these proceedings took place on board U.S. Naval Base Guantanamo Bay, Cuba, with the Review Tribunal made up of a Captain from the United States Navy, Lieutenant Colonels from the United States Air Force and Marine Corps, and a Gunnery Sergeant as Reporter (all names redacted). A confession before a tribunal is the best evidence of guilt, isn’t it? Whether it’s Guantanamo Bay or the Gulag Archipelago.


Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.

Critics Respond To Pentagon Tribunal Rules

	Posted on Fri, Jan. 19, 2007
	Critics react to Pentagon tribunals A Miami Herald roundup of verbatim reaction to the Pentagon's new manual for prosecuting suspected terrorists as alleged war criminals at Guantánamo Bay, Cuba: • Martin S. Pinales, president, National Association of Criminal Defense Lawyers: 'Hearsay, double hearsay, and coerced confessions are all admissible, including statements extracted from witnesses by torture. Given the shaky constitutionality of the Military Commissions Act, the detainees' habeas corpus right to challenge their detention -- and the validity of any conviction -- is more important than ever.'' • Colonel Dwight H. Sullivan, U.S. Marine Corps Reserves, Chief Defense Counsel: ``The rules appear carefully crafted to ensure than an accused can be convicted -- and possibly executed -- based on nothing but a coerced confession. 'The rules would allow an accused to be executed based on nothing but hearsay. This is inconsistent with the approach recommended by Senator Lindsey Graham. Senator Graham, a veteran military lawyer, stated that although there may be a need to have additional exceptions to the hearsay rule, it would serve us well as a country to set down and come up with a hearsay rule that has exceptions for the needs of the war on terror, not just ignore the hearsay rule in general.' (statement, Senate Armed Services Committee hearing, Aug. 2, 2006) ``The rules provide no protection against unreasonable searches and seizures -- even searches that would intrude into a person's body. Under the Manual, a defendant can have his body cavities forcibly searched, without his consent, and any evidence derived thereof may be admitted against him. A defendant could be subjected to risky surgery in an effort to try to obtain something that the prosecution wants to see, like a piece of shrapnel. A defendant has absolutely no right to object to such conduct under these rules and the authorities don't even need to obtain a search warrant from a judge. 'The rules' broad protections for classified information threaten to swallow everything. These rules are particularly scary coming in the wake of new Guantánamo classification guidelines that make even the prisoners' own name classified as `SECRET.' ``The rules violate the principle that the jury shouldn't be allowed to see anything that the defendant can't see. Witnesses can be shielded so that the defendant can't see them, but the jury can. ``The rules favor the prosecution over the defense. For example, the prosecution can base its entire case on hearsay without calling witnesses, but if the defendant offers his own hearsay statement without taking the stand, the judge must tell the members, essentially, that the evidence isn't believable.'' ``The rules require the commission to accept the fundamentally-flawed CSRT [Combatant Status Review Tribunal] process determination that a person is an unlawful enemy combatant is dispositive. Once a CSRT has made a determination, the military commission cannot look behind that finding, even if the CSRT proceeding relied on evidence obtained by torture or other unreliable evidence. • Sen. Christopher Dodd, D-Conn.: ``I believe that the manual is a deeply flawed document on first review. I am particularly concerned about the limits on the independence of military judges, the lack of safeguards against coerced evidence being introduced in trial, and the limitations on defense access to witnesses and evidence. ``I feel strongly that it is more imperative than ever that Congress consider legislation to amend the Military Commissions Act of 2006 to address its flaws and those contained in the manual implementing the MCA. ``I am currently working with Senators Leahy and Feingold and others to review the Effective Terrorists Prosecution legislation, which I introduced last December, and will introduce a new bill in the coming days to address flaws in the MCA and implementing manual that are impediments to the effective and credible prosecution of suspected terrorists.'' • Jumana Musa, Advocacy Director for Domestic Human Rights and International Justice, Amnesty International USA: ``If the goal is to bring people to justice, rather than tinkering with a system that was struck down by the U.S. Supreme Court and hastily passed by Congress, the United States should use the system that is in place -- the federal courts, as their procedures meet fair trial standards. Amnesty International regrets that the Department of Defense declined to subject the new military commissions rules to a notice and comment period, which would have allowed relevant legal and human rights experts the opportunity to provide input into the system. Amnesty International has repeatedly raised concerns about the commissions rules and finds that with today's revised rules there remain fundamental issues that will prevent these reconstituted military commissions from meeting internationally recognized fair trial standards. ``Although Congress has authorized this ill-advised system that gives fewer rights and protections to foreign nationals than to U.S. citizens, that does not guarantee that the system will pass judicial scrutiny. While there are some notable improvements over the old system that the Supreme Court struck down, the changes do not go far enough to ensure the due process rights of those who will face the system. Civilians picked up far from any battlefield still may be tried in a military system of justice, and defendants can be convicted on evidence obtained through coercion or cruel, inhuman and degrading treatment that would be inadmissible in any other U.S. judicial forum. The commissions are not bound by any precedent or case law, making the mounting of an effective defense extremely difficult. ``Amnesty International renews its call to scrap the new military commissions system and instead to try people accused of terrorism-related offenses in federal court. Rather than proceed with these commissions, the United States should use established systems of justice whose standards meet the requirements for fair trials.'' • Nan Aron, president, Alliance for Justice: ``These rules permit death penalty verdicts against detainees who have confessed under torture and coercive interrogation. This is certainly not justice and, in fact, is little more than a rejection of American values. It's unconscionable that the Bush administration drafted the rules in secret with no input from Congress or the public.'' • Elisa Massimino, Washington director, Human Rights First: ``No civilized nation permits convictions to rest on coerced evidence, and reliance on such evidence has never been acceptable in military or civilian courts in this country. There's a good reason why such tainted evidence is not allowed. It is inherently unreliable, and permitting its use debases the military justice system and dangerously undermines the prohibition on torture and abusive treatment. The fact that the military commission rules allow such evidence to be used calls the legitimacy of the entire system into question.''

Impeachment Hearings for Bush & Co.? How about War Crimes Tribunals

Nov 27, 2996

By Heather Wokusch


While Bush administration members have made a sport of breaking the law, both domestically and internationally, their intransigence will come back to haunt - one way or another.

The Bush Doctrine of taking "the battle to the enemy," for example, is a direct repudiation of the United Nations Charter, which prohibits the use of international force unless in self-defense (after an armed attack across an international border) or related to a UN Security Council decision. And that explains why Bush's 2002 National Security Strategy makes a point to "protect Americans" from "the potential for investigations, inquiry, or prosecution" by the International Criminal Court "whose jurisdiction does not extend to Americans and which we do not accept."

The whole idea of the US being able to preemptively attack other nations was penned by White House lawyers two weeks after 9/11; former justice department lawyer John Yoo wrote memos for then-White House counsel Alberto Gonzales arguing that "no limits" stood in the way of Bush's ability to take military action and that "the president's decisions are for him alone and are unreviewable."

But giving someone like Bush "unreviewable" and unlimited military powers is reckless; the man can barely construct a sentence, let alone articulate a humane and effective foreign policy.
Besides, a "no limits" approach to foreign policy can't coexist with rule of law, which explains why just last week, US Homeland Security Secretary Michael Chertoff accused the United Nations and other world bodies of using international law "as a rhetorical weapon against us." Chertoff co-authored the infamous Patriot Act but is best known for his stunning incompetence regarding Katrina. If only he had been as eager to protect Americans from hurricanes as he is to protect them from global treaties...

Chertoff's view of international law as a threat to the US is supported by Rumsfeld's 2005 National Defense Strategy, which notes: "Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes and terrorism.

In other words, the Pentagon links "judicial processes" with "terrorism," and sees "judicial processes" as weakening the US "nation state." What kind of nonsense is that?
Now that Rumsfeld has "resigned" and Bush and Co. face their lame-duck years watching the war on terror implode, it's worth considering the aftermath of World War II, when the International Military Tribunal indicted and tried over 20 Nazi leaders for war crimes ranging from waging a war of aggression, killing civilians, mistreating prisoners and plundering property. How eerily familiar those charges seem today.

And how ominous that only weeks ago, German prosecutors began pursuing a criminal investigation into the alleged role of Rumsfeld, Attorney General Alberto Gonzales, former CIA director George Tenet and numerous other administration members regarding prisoner abuse at Abu Ghraib and Guantánamo.

Rumsfeld will lose his legal immunity when he ceases to be Defense Secretary, a fact which must weigh heavily on Bush and others. Unsurprisingly, the administration has taken pre-emptive action against future war crimes charges, including pushing through the scandalous Military Commissions Act, which provides them retroactive domestic protection from prosecution regarding prisoner abuse cases.

On the world stage, the administration's primary battleground for immunity has been the International Criminal Court (ICC), set up in 2002 to investigate and prosecute war crimes, crimes against humanity and genocide. Roughly 100 countries have ratified the ICC Statute, and over 40 others have signed it, but the Bush administration renounced the treaty on grounds it could lead to "frivolous or politically motivated prosecutions."

The administration has done everything in its power to enervate the ICC, including setting up bilateral "Article 98" agreements which arm-twist other countries into not prosecuting US nationals or foreign nationals working for the US. Over 100 nations, mainly poor and dependent on foreign aid, have signed the agreements, but many others have stood firm and lost US aid as a result, including Brazil, Peru and South Africa.

But such bribery will only go so far. The administration's "no limits" approach to foreign policy has alienated global allies, and in many parts of the world, Bush is regarded as a greater danger to world peace than North Korea's Kim Jong-il or Iran's Mahmoud Ahmadinejad. Continuing revelations of US war atrocities, such as the recent bombing of a Pakistani religious school in which 82 students died, only serve to fuel global outrage. It's hard to imagine administration members getting much sympathy in an international trial.

Bottom line, as calls for impeachment build at home, Bush might heed advice he once gave to Osama bin Laden: "you can run but you cannot hide."

Action Ideas:

1. A number of web sites provide information about human rights abuses linked to the so-called war on terror:

War Crimes Watch

Human Rights First

School of the Americas Watch

Cage Prisoners

2. As After Downing Street notes, this year a national coalition of organizations is making December 10 ''Human Rights and Impeachment Day.'' For related information on everything from Petitions to Dramatic Play Scripts and Yard Signs, check out the site's event resources.Note: Originally published: November 27, 2006

http://heatherwokusch.com/index.php?name=News&file=article&sid=96

Case against Padilla 'light on facts'

Last update: November 18, 2006 – 9:04 PM

That was the assessment of a federal judge who dropped the most serious conspiracy count. Prosecutors are appealing.
Dan Eggen, Washington Post


WASHINGTON - After he was arrested in 2002, Jose Padilla was considered so dangerous that he was held without charges in a military prison for more than three years -- accused first of plotting a radiological "dirty bomb" attack and later of conspiring with Al-Qaida to blow up apartment buildings with natural gas.

But now, nearly a year after his abrupt transfer into a regular criminal court, the Justice Department's prosecution of the former Chicago gang member is running into trouble.

A Republican-appointed federal judge in Miami has already dumped the most serious conspiracy count against Padilla, removing for now the possibility of a life sentence. The same judge has also disparaged the government's case as "light on facts," while defense lawyers have made detailed allegations that Padilla was tortured, threatened and perhaps even drugged during his detention at a Navy brig in South Carolina.

The Justice Department denied the allegations of torture last week and is pursuing an appeal of the conspiracy ruling in hopes that the charge will be reinstated. Prosecutors on Thursday also took the unusual step of revealing that Abu Zubaida, an Al-Qaida leader now imprisoned at Guantanamo Bay, Cuba, was a key source who led authorities to Padilla.

Acquittal possible

Some legal scholars and defense lawyers argue that the government's case is so fundamentally weak and its legal options so limited that Padilla could draw a relatively minor prison term or even be acquitted. The trial has been postponed once, until January, and is almost certain to be delayed again.

The difficulties have reignited a debate in legal circles over whether terrorism suspects such as Padilla can be effectively prosecuted in regular criminal courts or whether the Bush administration blew its chances by relying on questionable interrogation methods that cannot be used to build a criminal case.

Stephen Vladeck, an associate law professor at the University of Miami, said an acquittal or mixed result "would certainly add fodder to the position that the courts are not set up to handle these kinds of cases. But it also adds fodder to the other side that says they never had anything to begin with."This is the government's shot," Vladeck said. "It's certainly not near as strong a case as it was made out to be when the indictment was unsealed."

From combatant to charges

Padilla, now 35, was first thrust into the spotlight in June 2002, when then-Attorney General John Ashcroft announced Padilla's arrest and designation as an "enemy combatant."

Two years later -- facing growing legal challenges -- the administration took the unusual step of outlining a host of new allegations against Padilla, playing down the original accusations involving a "dirty bomb" plot. The indictment instead alleged that Padilla joined two other defendants, Adham Amin Hassoun and Kifah Wael Jayyousi, in funneling money to terrorist groups for battles overseas.

In a motion to dismiss the case in October, federal public defender Michael Caruso and his team alleged that Padilla "was tortured for nearly the entire three years and eight months of his unlawful detention."

The government counters that Padilla offers no evidence to back up the allegations and that his treatment is irrelevant to the criminal case.

A problem of evidence

Robert Chesney, a specialist in national security law at Wake Forest University, said he thinks the government will be able to fend off many of the current challenges to its case, including the decision by Judge Marcia Cooke, appointed by Bush in 2004, to throw out the murder conspiracy charge.

But Chesney and other legal scholars on both sides say that the government's case could prove troublesome in front of a jury.

"I think the prosecution is ultimately going to emerge victorious" Chesney said. "But, from Day One, we've never had sufficient admissible evidence to fully prosecute Jose Padilla."

http://www.startribune.com/484/story/821206.html