The Bush administration's decision to seek the death penalty against the accused masterminds of the Sept. 11, 2001 terror attacks may give some Americans the satisfaction of thinking that justice is in the offing - that someone will finally pay for the murders of nearly 3,000 people. But they would be wrong, because the military tribunal system created by President Bush to try such defendants is fatally flawed.
For families of 9/11 victims, the charges announced yesterday against six Guantanamo detainees may be long overdue, but the likelihood that these prisoners - including Khalid Sheik Mohammed, the al-Qaida operations chief who took credit for the 9/11 attacks - will be tried anytime soon is tiny because of the expected legal challenges.
In its eagerness to pursue terrorists, the Bush administration ignored the advice of military prosecutors and established a new system of military commissions. Congress later gave the commissions the power to suspend the right of habeas corpus for Guantanamo prisoners and to determine a detainee's status as an enemy combatant based on secret evidence unavailable to a prisoner.
From the start, the system was attacked for its lack of fairness. Through a series of legal challenges, the Supreme Court has forced the administration to provide more rights and a path of legal appeal to terrorist suspects at the U.S. naval base at Guantanamo Bay. The high court is now considering new challenges to the system.
The planned trials of the six detainees will likely add to the legal tangle; the use of torture to obtain evidence surely will be contested. The head of the CIA recently acknowledged using waterboarding - a form of torture - to obtain evidence against three of the suspects, including Mr. Mohammed.
The Army's recently installed chief prosecutor, Col. Lawrence J. Morris, is promising a fair trial, with defendants gaining full access to evidence. Mr. Mohammed's notoriety will add to the challenge of delivering on that promise.
Mr. Bush is unlikely to have the satisfaction of seeing any of these defendants convicted before he leaves office. The next president should end this travesty of justice, shut down Guantanamo and bring the remaining prisoners back to the United States for trial or release to their home countries.
The architects of the military commission system failed to honor the basic principles of truth and justice that set the United States apart from other countries. America continues to pay a steep price for that failing.
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