After seven years of the "War on Terror," the administration's military commissions system has managed only to convict three low-level al Qaeda functionaries, two of whom have already been sent home. Now the military tribunals have become even more of a farce. This week it was revealed that the five defendants - including Khalid Sheikh Mohammed the alleged mastermind of the 9-11 attacks - intended to plead guilty in the hopes of being executed before President Bush leaves office. In normal circumstances a guilty plea represents a victory for the prosecution, but in this case the defendants hope to achieve martyrdom and expose the serious flaws of the military commissions and therefore the credibility of the American justice system. As the Washington Post notes, "the United States is on trial as much as he is." By moving outside the traditional U.S. justice system, the Bush administration has turned what should have been a sober, deliberate process of bringing the 9/11 masterminds to justice into a charade. The administration has turned what should have been a clear opportunity to bolster America's international image by demonstrating that America is a nation founded on the rule of law, and instead turned the process into a black spot on America's reputation.  The Bush administration's actions now are further complicating the legal, strategic and moral mess it has bequeathed to its successor.

Mastermind and four other defendants behind 9/11 announce they will confess, sending process into disarray.  The Washington Post reported that "The five men charged with orchestrating the Sept. 11 attacks are in a hurry to enter guilty pleas on their apparent quest for martyrdom."  The supposed architect of the attacks, "Khalid Sheikh Mohammed said Monday he will confess to masterminding the attacks that killed 2,975 people. The four other defendants did the same, in effect daring the Pentagon to give them death sentences."  Their confession is in fact a cynical public relations ploy to draw attention to the flawed military commissions and rail against the United States. "Under typical circumstances, those facing capital charges enter such pleas to avoid execution. But these are not typical circumstances or typical defendants. Once informed that a plea deal could eliminate the possibility of execution -- and thus thwart their quest for martyrdom -- Mr. Mohammed and his cohorts backed off, at least for the time being. Col. Henley has asked both sides for legal briefs on whether the death penalty is a possibility if the defendants plead guilty."  The flawed process, creating an unprecedented parallel legal structure, has created an opening for Mohammed to publicly and internationally expose America's darkest violations of its own values and traditions.  As the Washington Post says, "The world is watching, which must please Mr. Mohammed. And he must know that the United States is as much on trial as he is. Regardless of whether the death penalty is in play -- but especially if it is -- Mr. Mohammed and the others must be tried under a system that is beholden to nothing but the rule of law." [Washington Post, 12/9/08. Washington Post, 12/10/08. The Guardian, 12/8/08]

Khalid Sheik Mohammed proceedings put an absurd cap on Bush administration's disastrous attempts to try terrorist suspects outside our legal system.  As an editorial in the Washington Post points out, "the proceedings at the U.S. Naval Base in Guantanamo Bay, Cuba, have again become a forum for the absurd."  The Post editorial goes on to argue that Mr. Mohammed and the others' attempts to use the trial for their own ideological purposes was "made all the more possible because of the deeply flawed nature of the Guantanamo proceedings, which deny the detainees basic due-process rights that are available in civilian courts." Unfortunately, this latest episode is just one in a litany marking a process that the Washington Independent referred to as "fraught with controversy from the beginning."  "Several military lawyers have quit or sought reassignment from the commissions out of concerns over their basic fairness," and bipartisan military, law enforcement and terrorism experts have condemned the tribunals as counter-productive to the struggle against extremism and simply counter to American constitutional values. Over the same period, federal courts have successfully tried a number of terrorism suspects, handing down verdicts with no serious allegations of damage to US national security.  Mohammed and the others could have stood trial in a federal court long ago, and their sentences carried out apart from the unseemly carnival of President Bush's last weeks in office.  [Washington Post, 12/10/08. The Guardian, 12/08/08. Washington Independent, 12/08/08. NSN, 8/06/08]

The Bush administration leaves legal and international mess for the incoming Obama administration.  Ken Gude of the Center for American Progress writes that, "This episode is not just another missed opportunity or political setback. It could have serious ramifications for the incoming administration. Most observers expect President-elect Obama to scrap the military commissions and use established US courts for the trial of any Guantánamo detainees. Yet, if the military commission accepts this guilty plea, it could place the Obama administration in a box. It is an unresolved question whether the prohibition on double jeopardy would preclude a separate trial in criminal court, but many legal analysts believe that it does. If so, any move to cancel the military commissions would call into question the validity of Mohammed's conviction, adding an extra layer of risk and uncertainty to the difficult decisions over the military commissions. Furthermore, carrying out the likely death sentence from such a flawed process would only enhance Mohammed's martyrdom in the eyes of his followers."  If the trials are seen as illegitimate in the eyes of the world this will only make future terrorism trials more difficult and efforts to protect America more problematic. As the Washington Post editorial page suggests, "federal courts would immediately infuse a level of legitimacy that has been sorely lacking in the Guantanamo proceedings." [The Guardian, 12/8/08. Washington Post, 12/10/08]