How Torture and National Security Have Corrupted the Right to Fair Trial in the 9/11 Military Commissions

Abstract

Abstract Now passing its tenth year of pre-trial, the 9/11 military commission involves five men on trial for war crimes and terrorism in relation to the attacks against the USA on 11 September 2001. This article examines specific issues regarding the relationship between the prohibition against torture, national security and the right to fair trial that have arisen in the pre-trial phase of the case. The most obvious connection between the prohibition against torture and the right to fair trial has traditionally played out in the context of the exclusion of evidence obtained through torture. However, the frenetic nature of engagement between the defense and the prosecution in the courtroom reinforces that the US government’s efforts to hide the torture of the defendant victims diminishes the further range of protections that make up the right to fair trial, in particular this article examines various components of the right to an effective defense. In analysing these issues, the article contributes to the legal literature and understanding about the interrelated nature of torture and fair trial in the Guantánamo military commissions by demonstrating how efforts to conceal torture using the guise of national security prevents the defendants from fully engaging their rights to a fair trial in the 9/11 military commission.