Military prosecutors announced yesterday that they have filed death penalty charges “against a former senior leader of Al Qaeda and five other Guant¡namo detainees on Monday for their roles” in the 9/11 attacks.
One of these detainees, Khalid Sheikh Mohammad, the so-called 9/11 “mastermind,” has been confirmed to have been waterboarded. Yesterday evening, Attorney General Mike Mukasey refused to rule out using this evidence in court, saying, “What evidence gets presented at this trial is up to the prosecutors.”
On CNN last night, Charles Swift, the “hero of Guantanamo” who represented Salim Hamdan in the case Hamdan v. Rumsfeld, slammed the government’s refusal to rule out waterboarding-based evidence in the military commission:
SWIFT: And if we use — we move beyond the torture discussion to the question of using this in a trial where life and death is at stake. If we use waterboarded testimony in that trial, to my knowledge…the last precedent for using that kind of testimony was the Spanish Inquisition.
Swift added the government’s “incredibly unenviable position” of using torture evidence “is further compromised by the fact that we destroyed the tapes of the interrogations themselves,” referring to the CIA’s interrogation tape destruction.
And according to Swift, the trial could be unfair, as the government’s Office of Military Commissions has no attorneys who are “death-penalty-qualified currently assigned” to the case. They “don’t have the resources,” he said. “The government seems to almost intentionally insure that there is not sufficient assets to put on a credible defense.”
Swift concluded, “I have absolute faith in our system of justice that we can convict an admitted mastermind without using torture to do it. It’s the fact that we keep trying to do it that’s destroying us.”