Is it possible for Khalid Shaikh Mohammed (KSM), his co-defendants and the victims of their alleged crimes to receive justice? Can their torture and harsh conditions of confinement be ignored at the defendants’ trial? The Obama administration answers both questions affirmatively. The chief prosecutor at the “Military Commission” hearing stated, “The remedy for torture … is not to just dismiss all charges…” He continued, “[I]t doesn’t pass the common sense test that everything … is polluted and tainted by an instance of torture[.] That means everybody goes free? That’s not justice.”

In fact, the Obama administration’s rules prohibit the defendants’ attorneys from even conferring with their clients about whether they were abused by their jailers. Apparently the Justice Department believes that how these defendants have been treated during almost a decade of confinement has no bearing on their receiving a just outcome.

Many people object to the farce going on at Guantánamo, but most of those appear to believe it would be fair to try KSM in a civilian court. I disagree. I believe our government cannot deliver “justice” in any of its courts after holding KSM without charges since 2003, water boarding him 183 times and committing other human rights violations against his person. I think that the fact that one branch of the government (Executive) perpetrated this travesty, a second (Legislative) applauded it and a third (Judiciary) provided no remedy, renders our government incapable of meting out justice in his case.

The problem with permitting even our civilian court system to sit in judgment of these defendants is that to convict them while ignoring how we treated them, while simultaneously allowing those who committed crimes against them during their imprisonment to avoid responsibility, would amount to tacit acceptance of torture by our judicial system. The Obama administration and the Judiciary have made it clear that neither KSM’s tormentors, nor those higher-ups responsible for initiating the policies that led to his torture, will face any discipline in the foreseeable future. Thus, whatever body tries KSM and his co-defendants will be declaring that it is okay to ignore torture.

Some might respond, “But we can’t just let mass murderers go free.” And they have a point. If KSM really did “mastermind’ the September 9/11 attacks how can setting him free be right? Where’s the justice in that for the victims’ family members?

I’ve suggested in an earlier blog that the government hand these defendants over to the International Tribunal at The Hague. There they would be in the hands of a competent court that played no role in violating their human rights. However, given that the International Tribunal has handed out 15 to 20 year prison sentences for those responsible for thousands of deaths in Bosnia, and that it might view their mistreatment as a mitigating factor in sentencing, the Tribunal could release these defendants shortly after their trial even if they were convicted.

For those who see no justice in this result, I’ve thought of another possibility. First disband the “Commissions.” Next, while there ultimately should be a domestic civilian trial, that action must be postponed until the conditions of KSM and his co-defendants’ confinement have been thoroughly investigated, publicized and adjudicated. Finally, these defendants’ trials should not commence until those responsible for human rights violations, including those at the very pinnacle of power who originated the policies in question, have been punished.

These proceedings may take years more to reach their ultimate conclusion, and releasing KSM and his co-defendants while they wait for their trial is not an option. However, in view of their almost decade-long detention at Guantánamo under terrible conditions, until their trials are completed they should be held in what amounts to house arrest, in a much more comfortable setting with extensive visiting rights and other “privileges”.

I have no illusions that what I’ve proposed here has any chance of being adopted. In fact, I would expect my ideas to be met with howls of protest from the vast majority of my fellow citizens. “How could you espouse coddling such evil people?” is what I imagine most would say. But what I propose would protect the public, and would hold torturers accountable. And allowing the detainees to live in relative comfort, while a bitter pill to swallow for some, might exact a high enough price from the government to deter similar human rights violations in the future.

I believe our government’s actions have made it impossible to render justice in this instance. If they are guilty of killing thousands, releasing KSM and his co-defendants is not just, but trying them as if the torture never happened isn’t either. I know what I propose is far from perfect, but I hope it will inject a little fairness and salvage a bit of justice. I welcome any alternative solutions from anyone who reads this.

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