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9/11 tribunals were unprecedented

ALBUQUERQUE, N.M. — The use of military tribunals to try 9/11 terrorists is reminiscent of the film “Jurassic Park,” in which long-extinct species are resurrected, a speaker familiar with the Guantanamo Bay prisoners’ legal situation told a UNM law school audience this week.

Moreover, President Bush’s order to establish tribunals, or commissions – coming two months after the terror attacks – was, for many, an end in itself rather than an avenue for swift prosecution and justice, said Jess Bravin, the Wall Street Journal’s Supreme Court correspondent.

Bravin, an attorney, was in town Thursday for the 60th annual John Field Simms Sr. Memorial Lectureship in Law, sponsored by the University of New Mexico School of Law.

Setting up tribunals “was like taking DNA from an extinct species and bringing it back to life,” he said.

In some ways, Bush’s order emulated a 1942 directive of President Roosevelt to use military tribunals to try eight Nazis who had infiltrated the United States. But there were also significant differences, Bravin said. For one, FDR’s order dealt specifically with eight defendants, while Bush’s was open-ended. Nor did Bush’s rely on an existing body of law or established federal rules. It contained no right of appeal.

“It seemed pretty extreme,” said Bravin, whom the Wall Street Journal dispatched to Washington, D.C., after the 9/11 attacks to cover the legal developments. “So this was quite a remarkable document.”

Bravin opened his talk by describing the scene in New York on that “really transformative day.” The collapse of the World Trade Center’s twin towers also destroyed the World Financial Center, home to the Wall Street Journal. Bravin made his way to Ground Zero the next day, Sept. 12, 2001, and “found the strange moonscape that Lower Manhattan had become.” It was, he said, “a nightmarish world.”

But the question for Bravin and his newspaper was, “How is our legal system responding?”

When the Guantanamo Bay prison opened in January 2002, Bravin was there. Initially, he said, he thought trials would begin quickly. Officials as highly placed as Vice President Dick Cheney had demanded “fast justice,” and, historically, tribunals – such as the Nuremberg trials after World War II – were completed rather quickly.

In 2004, when the first legal proceedings finally began, Bravin noticed that the earlier haste to file charges had dissipated. “What’s the rush?” was the new mood, a sentiment that continues to this day.

Part of the problem was revelations that the United States had been torturing prisoners. It was feared that the details would come out in trials. Also, the United States had ratified Geneva Accords provisions outlawing torture and inhumane treatment of prisoners of war. They were now American law.

“It would really be the United States on trial,” Bravin said.

The first subjects scheduled for trial were those considered easiest to convict. But they were all British citizens, and Parliament and the British press found such trials unacceptable. Eventually, the prisoners were released to Britain and the charges dropped.

Next in line was Salim Hamdan, Osama bin Laden’s driver. Like other prisoners who had boasted about their roles in the al Qaeda-sponsored 9/11 attacks, Hamdan could not plead guilty because the trial was carried out by the military, and it does not allow such pleas in capital cases. Hamdan was convicted on a minor charge, but that was soon vacated by the D.C. Circuit Court. To date, his is the only trial to go all the way, and none of the major defendants – including Khalid Sheikh Mohammed – have stood trial.

In response to a question about the trials’ legacy for the U.S. legal system, Bravin smiled. “Time will tell,” he said. “They certainly won’t be remembered as an example of swift and sure justice.”

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