Justice for 9-11 victims shouldn't involve military commissions

March 11, 2010

Originally posted to McClatchy Newspapers

By Talat Hamdani, Amnesty International Activist

My son, New York Police Department cadet Mohammad Salman Hamdani, was one of the brave souls who died on Sept. 11 trying to rescue people in the World Trade Center.

My life, like countless others, will never be the same.

One thing that has kept me going is the hope that justice will be served. Unfortunately, after more than eight years of repeated delay, it looks like that process could get derailed before it even begins.

Along with many other victims’ family members, I was encouraged in November when Attorney General Eric Holder announced that the 9-11 trials would happen in federal court in New York instead of in the military commissions system. But then, much to my dismay, I watched as some New Yorkers cowered in fear of unsubstantiated threats to their safety, businesses near the courthouse complained they might lose money and local officials fretted about the cost of providing security for the trials.

And while some — though not all — of these concerns are understandable, I cannot tell you what it’s like to hear people say that bringing terrorists to justice is just too scary, too expensive, too inconvenient and not worth some sacrifice.

Is this New York? Is it America?

In the face of these objections, reports indicate that the Obama administration might not only move the trials to another location, but might actually move them back to the military commissions. This would be a monumental error. I’ve been to those commissions, and I can say first-hand that they are an unqualified and chaotic disaster where the rules get made up as they go along.

At one of the early 9-11 hearings, the military judge actually referred to the process as a “learning experience.” Now, years later, despite a missed deadline, new rules needed for the latest version of the law authorizing the commissions have not even been issued. Even when they are, they will not answer basic questions like whether a defendant can plead guilty to a death penalty charge.

The most important cases in U.S. history should not be a lab experiment.

In addition to their lack of clarity, the commissions have constitutional problems that could result in questionable verdicts, leading to years more delay due to legal challenges which, ironically, would probably end up in the federal courts, anyway.

For instance, some kinds of hearsay remain admissible, making it possible that statements of an individual pointing a finger at the defendant could come into trial even if that individual is not in court, denying the accused the opportunity to confront his accuser. The accusatory statement could even be used against the defendant if it was made under coercion. It doesn’t take a legal scholar to know this smells wrong and I, for one — after all this time — don’t want to be faced with a guilty verdict obtained by cutting corners and shrouded in a cloud of doubt.

Another minefield that could sink the entire commission system is that it can only be used to prosecute “aliens.” This sets up two systems of justice — one for Americans and one for others. I already had a personal experience with such thinking right after the 9-11 attacks. While my son was still missing, law enforcement authorities — joined by the media — initially decided he was a suspect in the attacks largely because of our last name. Because of this, they actually delayed informing me that Mohammad’s remains were found. It wasn’t until months later that he was recognized as a hero.

Some are saying that using military commissions is the “tougher” way to proceed against accused terrorists. But the facts say otherwise. Compared to the over 300 terrorism-related convictions in federal courts, the military commissions, in eight years, have produced only three for individuals who are already free after serving relatively short sentences.

The commissions are simply not prepared or experienced enough to handle complex international terrorism cases. Part of the problem is that while many military judges are competent, hard-working and honorable, military criminal cases typically involve prosecutions of U.S. soldiers and sailors for ordinary crimes. There are relatively few murder cases, fewer death penalty cases and almost no conspiracy cases, much less international terrorism trials. This is a problem no new law can fix.

Others worry that federal trials will give the accused a soapbox to spew their hateful agendas. In fact, federal judges are known for preventing such outbursts, as was the case in the Zacharias Moussaoui trial. It was in the Guantánamo commissions that the 9-11 defendants were allowed to give five-minute tirades.

This argument always seemed weak to me: can you imagine not putting Timothy McVeigh on trial because he might make hateful statements? Or any serial killer, for that matter?

The last eight and a half years have been tough. On top of dealing with my personal loss, my faith in our government has been repeatedly challenged as I’ve seen principle discarded in the name of politics and fear. The Obama administration’s November decision to choose principle when it came to the 9-11 trials was a breath of fresh air.

If the administration reverses itself now, it would almost be worse than had it made the wrong decision to begin with. Not only will our hopes have been raised only to be dashed, but it would send the message that our principled decisions become expendable when the going gets tough. That is not the legacy I wish for my son.

Talat Hamdani is the mother of Mohammad Salman Hamdani, an NYPD Cadet who died on September 11 attempting to rescue people at the World Trade Center.