A Pentagon prosecutor filed proposed death penalty charges Monday against a Tanzanian man (Ahmad Ghailani) currently held at Guantanamo, alleging he helped amass dynamite and other supplies for the 1998 al Qaeda suicide bombing of the US Embassy in Dar es Salaam, Tanzania.

Mr.Ghailani was captured in Pakistan in July 2004 and spent two years in secret CIA custody before being sent to Guantanamo in September 2006.

Herein lies the issue. A Manhattan federal court had already indicted Mr.Ghailani ten years ago (in 2001) on charges of conspiring to attack the Embassy in a coordinated attack.

Given that the matter is already pending before a civilian court, one is inclined to ask why the Pentagon would prefer to have Mr.Ghaliani’s case determined before a Military Commission rather than an independent judiciary.

The Center for Constitutional Rights in New York has the answer:

“The only reason the government is now militarizing these criminal acts is to hide what the CIA is doing in its interrogation program behind the secrecy of the commissions, which can allow the use of secret evidence as well as evidence obtained through torture.”

Indeed, a Military Commission is a non-compliant tribunal that permits the use of evidence obtained improperly and allows for hearsay evidence to be used against the accused. In a civilian court, evidence obtained through torture is inadmissible and unlike a Military Commission, the accused is entitled to representation, granted unfettered access to all evidence and has recourse to appeal. Furthermore, by hearing the case in a Military Commission, the US administration will not have to deal with a jury or contend with any arguments predicated on the American constitution or the Bill of Rights.

America has rules that exist to protect rights in military settings: the Uniform Code of Military Justice. Since 2002, organizations such as the American Bar Association have urged that detainee trials be governed by the Uniform Code and in accordance with treaty obligations. In Guantanamo however, this is not done.

Such a dual system of justice is a concern for all of us. In fact, William H.Neukom, President of the American Bar Association, states: “If basic due process is abridged this way, especially in death penalty cases, such trials are likely to leave a cloud of doubt and distrust, in the United States and abroad.”

The judicial system depends on public confidence for its legitimacy. In turn, public confidence is inspired by fair trials and due process for all. If the American administration believes that Mr.Ghailani is guilty, his case should be heard before a civilian court so that it is clear that the trial has been fair, impartial and just. Such a trial will have a two-pronged effect: justice will be done and the credibility of the courts will be re-established. A judiciary simply cannot co-exist with an organ that is fused with the Executive and authorised to exercise judicial power.

Cases that have to potential to impose serious consequences (such as the death penalty) should be handled with the utmost care and diligence. Mr.Neukom notes:

“Meeting the highest standards of justice will make a powerful statement to the world: No matter how deep our anger, America’s commitment to the rule of law stands strong. Suspects convicted through fair trials will be seen as criminals, not martyrs.”

By Alim Khamis