Out of order

Wouldn’t it be reassuring if the trial of suspected 9/11 mastermind Khalid Sheikh Mohammed and five other alleged terrorist plotters could finally provide accountability and justice? Unfortunately, the announcement Monday by military prosecutors that they will seek the death penalty for the six men under the ill-conceived Military Commissions Act is unlikely to bring closure. In the eyes of many in this country and the world, the jury-rigged system of justice for detainees at Guantanamo Bay will be on trial along with the defendants.

The charges of murder and war crimes against Mohammed and the other suspects are well-founded. The problem is that the CIA recently admitted that it waterboarded Mohammed to find out whether he knew of other planned Al Qaeda attacks. Military prosecutors could spare the country further embarrassment by announcing that they would not need to present any testimony coerced by waterboarding. (Although the U.S. military has banned the technique, the Bush administration continues to insist, against reason and decency, that it isn’t illegal.) Instead, when asked whether Mohammed’s statements after waterboarding would be admissible at his trial, Air Force Brig. Gen. Thomas Hartmann, the military commissions’ legal advisor, said that would be for the judge to decide.

As a legal matter, he’s right. As a political matter, that statement, and the decision to seek the death penalty, will only further inflame critics of U.S. policy abroad. And as a moral matter, the possibility that a suspect could be put to death in the United States based on statements coerced from him by torture is an abomination -- even more so because it might be legal. Under the Military Commissions Act, evidence obtained by coercion may be introduced at trial provided a judge finds it “reliable and probative” (meaning persuasive and damning). Congress rushed to pass this deeply flawed act, which also denies detainees the ancient writ of habeas corpus, after the Supreme Court ruled in 2006that the military commissions could not be used to prosecute enemy combatants for war crimes without congressional authorization. But the act failed to guarantee that the tribunals would give defendants a fair trial, or to provide any mechanism for the release of innocent detainees wrongly deemed enemy combatants.

The military judges should refuse to admit any evidence tainted by waterboarding or any other form of illegal coercion -- but they may have little choice given that they’re required to conduct the trial under the odious statute passed by Congress. Pentagon officials say they’re confident that they have enough unclassified, incontrovertible evidence to prove Mohammed’s guilt without resorting to any coerced testimony. They’d better be right. Otherwise, the trial will fail at its most important task: to show the world that the 9/11 terrorists were not noble freedom fighters but common criminals who committed mass murder. If prosecutors cannot make that case without secret evidence or testimony tainted by abuse, they will dishonor U.S. justice and our cause.