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Victim Statements at 9/11 Trials? Not Fair

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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I've been generally sympathetic to the military prosecutors seeking to convict the 9/11 planners in Guantanamo. My take has been that they are honorable people trying to accomplish a task that may be impossible, namely making the tribunal into something more than a show trial.

But now the prosecutors have made a serious misstep in the form of a foray into public relations. They’re asking the court to allow public testimony by ten elderly, sick relatives of 9/11 victims this October -- before the guilt-or-innocence phase of the trial has begun.

Such testimony is legally unnecessary before the sentencing phase, when it's potentially plausible to allow victim-impact statements.  If the prosecutors were worried that these family members might not live long enough to make such statements, they could record their depositions privately and introduce it after conviction.

But it seems pretty clear that this isn’t what's motivating the prosecution team. Recently, the prosecutors have taken some hits from defense attorneys who’ve drawn public attention to the fact that some of their clients were tortured, waterboarded far more even than what the Department of Justice problematically said was allowed. There's also been public attention drawn to possible destruction of evidence by the government.

In the light of these developments, the prosecutors seem intent on changing the narrative of the trial. The simplest way for them to do so is to focus public attention on the horrific crimes with which the defendants are charged. Testimony about the deaths of almost 3,000 innocent people could do that. By having it presented in open court, with the defendants present, victim statements will create a tableau that would serve the prosecutors’ current publicity needs.

In an ordinary trial, both sides try to take advantage of public perception to advance their causes. Prosecutors should be bound by higher moral standards than defense attorneys, but at least the publicity fight is more or less a fair one.

That isn't true in the Guantanamo tribunals. Defense attorneys are at a huge disadvantage when it comes to publicity. Everything their clients tell them is more or less classified -- which means they can't pass it on to the public. That includes the torture suffered by some of the defendants at the hands of the U.S. government.

Given that secrecy profoundly hampers the defense efforts, it’s particularly outrageous that the prosecution side would try to use publicity to press its case. We all know what happened when terrorists attacked the World Trade Center and the Pentagon in 2001 -- we saw the raw footage. But we don't know everything about the investigation that followed. What we saw was a movie version -- a fiction designed to stand in for an uncomfortable reality.

The prosecutors have couched their argument in a superficially plausible form, namely a motion for a deposition to be taken from witnesses who might not be available at trial. But this is cover for creating a spectacle that would make the already legally troubled Guantanamo tribunals into even more of a show trial.

That's not fighting fair. And it's not especially honorable.

(Deletes references after fourth paragraph to televising the testimony in article published June 1.)
  1. Actually it isn’t legally clear whether the victim-impact statements would be allowed even then. As the prosecutors acknowledge in their motion, such statements aren't allowed in courts-martial when a capital sentence is being sought. The prosecutors will have to convince the judge that the special rules for the tribunal, which are silent on victim-impact statements, allow them to be introduced. The prosecutors also claim this issue doesn't need to be resolved before the statements are taken. Given the potential publicity, this seems wrong to me. The defendants will potentially be prejudiced by the victim impact statements being taken before trial. The court should determine if statements are even admissible before it allows the courtroom to be taken over by them.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net