United Nations human rights investigators called on the Obama administration on Tuesday to prosecute the accused September 11 masterminds in a civilian court, declaring that U.S. military tribunals would not be fair.
The White House is reviewing options to bring the 9/11 detainees to justice and U.S. officials said on Friday senior administration officials may recommend that Khalid Sheikh Mohammed and four other suspects in the 2001 attacks face a military trial.
"I take the view that the Military Commissions Act is fundamentally flawed. It is very far from international fair trial standards and probably cannot be fixed," said Martin Scheinin, U.N. special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism.
Scheinin and other U.N. rapporteurs are independent investigators reporting to the U.N. Human Rights Council, whose 47 members include the United States.
The Finnish international law professor, who has visited the U.S.-run detention center at Guantanamo Bay in Cuba, also said it would be a mistake for the Obama administration to try to reform the Military Commissions Act, proclaimed under President George W. Bush, to try to provide for fair trials.
"To me the only safe option is to go to regular federal criminal courts which also have a much better track record in dealing with terrorism cases than the very unfortunate military commissions," Scheinin told a news briefing in Geneva.
Military trials allow for evidence obtained by cruel or degrading treatment of detainees and have a "backdoor" for using confessions obtained under torture by allowing hearsay, he said. This was in breach of U.S. obligations under international law.
Attorney General Eric Holder had originally planned to have the five men tried in a civilian court in New York City, where most of the nearly 3,000 victims of the attacks were killed.
But opposition from New York Mayor Michael Bloomberg and lawmakers in Washington prompted a change in plans.
The U.S. administration for weeks has publicly acknowledged it was considering a shift as a result of concerns over the cost and disruption of a civilian trial in New York and the requirement that the suspects receive full legal rights.
Manfred Nowak, U.N. special rapporteur on torture, said that the detainees should face civilian trials for heinous crimes.
"We are dealing with a very, very serious crime that should be dealt with by the ordinary criminal courts according to ordinary criminal legislation that is applicable to these types of crimes, which I consider crimes against humanity," he said.
Criminal courts in Germany, Italy and the United States have tried terrorism cases in the context of the ordinary criminal justice system, according to the Austrian law professor.
"The same should apply to all the persons accused of having been the masterminds, of having participated in the 9/11 attacks," Nowak said.
He said it was possible some evidence extracted by torture would not be admissible in a civilian criminal court but it would surprising after so many years if U.S. prosecutors did not have evidence that was not obtained by mistreatment.
(Editing by Jonathan Lynn)