One of President Elect Obama’s key challenges in 2009 is going to be how to deal with captured terrorists. During the campaign, Obama pledged to close Gitmo. But the recent guilty-plea of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks means Obama will face a dilemma. By Inauguration Day, Khalid Sheikh Mohammed and five other defendants may have been sentenced. Any sentence will have to be signed off by the President. This means that Obama will either have to agree or disagree with the verdicts which could include death sentences.
If Obama seeks to change the system, for example by having them retried in an ordinary U.S court, then what happens to the confessions of the defendants (that have been extracted using interrogation techniques most people consider to be torture)? Are they admissible or not?
Importing the standards used in Guantanamo into ordinary courts will blow a big hole in the nature of due process, even on an exceptional basis. But fortunately there may be a way out. Sources say that the FBI sent “clean teams” in to re-interrogate the high-value detainees when they arrived at Guantanamo, so they could secure untainted admissions. Khalid Sheikh Mohammed’s boast before the Military Commissions that was responsible for 9/11 “from A to Z” and that he was making the statement without coercion may also make matters a little easier. No doubt using the outcome of any questioning is legally dubious and will require statutory change which the Supreme Court might deem unconstitutional. But it could be a way forward.
Obama also has to put in place a legal system for future detainees. In doing this he should think internationally, not nationally: terrorists operate across borders.
Following the Mumbai atrocities, Pakistan arrested members of The Lashkar-e-Taiba. But the government is refusing to hand them over to India for trial. This will be a problem, as nobody in Delhi believes that the Pakistan government will try the suspects, particularly as part of the country’s security establishment are accused of being complicit in the attacks (and the subsequent cover-up).
So an international solution has to be found. One way would be to use the International Criminal Court (ICC). This would require the Rome Statute, which set up the Court, to be amended so as to create a Deputy Prosecutor for Terrorism, a separate Terrorism Chamber, and a separate Panel of Judges to preside over these cases. Crucially, the statute would have to add jurisdiction over the crime of terrorism and define it.
None of this is easy. UN attempts at agreeing a Convention on Terrorism will undoubtedly be bogged down in the usual disputes over what constitutes terrorism. As the adage has it, one man’s terrorist is another’s freedom fighter. Then there will be opposition from the backers of the ICC who do not want the Court to be embroiled in the politics of terrorism. It has yet to find its feet trying war-criminals.
But both of these obstacles have to be overcome if the U.S and its allies are to avoid the Guantanamo curse. Making the ICC the focus of international counter-terrorism prosecutions may also have the added benefit of giving the US an inducement to join the Court.
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