9/11 Trial to Enter Uncharted Legal Area

By Aamer Madhani and James Oliphant, Chicago Tribune

Feb. 12–WASHINGTON — The plan announced by the Pentagon on Monday to seek the death penalty against six suspects accused of planning and organizing the Sept. 11 attacks could be complicated by the recent acknowledgment that one of the accused was the subject of waterboarding, as well as the legal and international communities’ antipathy to the Bush administration’s military tribunals.

The charges filed against the six, including alleged Sept. 11 mastermind Khalid Shaikh Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try them together.

Monday’s announcement takes the Pentagon, and the country, into largely uncharted legal territory. The procedures of the military commissions have been challenged repeatedly in court, with some success, and legal precedents that have been developed by courts over decades or longer hold less sway than in the civilian criminal justice system.

But the administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top terrorists.

“These charges allege a long-term, highly sophisticated, organized plan by Al Qaeda to attack the United States of America,” Brig. Gen. Thomas Hartmann, the legal adviser to the tribunal system, said Monday at a Pentagon news conference.

Besides Mohammed, the other men facing charges for the Sept. 11 plot are Waleed bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali, Mustafa Ahmad al-Hawsawi and Mohammed al-Qahtani. Mohammed, bin Attash, Binalshibh and Ali are also charged with “hijacking or hazarding a vessel” in connection with the four commercial airplanes that were crashed into the World Trade Center, the Pentagon and a rural Pennsylvania field.

As the commissions’ procedures dictate, Judge Susan Crawford, the convening authority over the military tribunals, still needs to certify the charges against all six suspects as capital offenses to make the men eligible for the death penalty if convicted.

Since its opening, the Guantanamo prison has been criticized by human-rights activists and some foreign leaders as a secretive facility operating outside U.S. law. The military commissions also have been criticized by many in the legal community, and federal courts have repeatedly questioned the Bush administration’s overall system for handling enemy combatants in the war on terror.

A 2006 Supreme Court decision struck down the first version of the military tribunal, or commission, system as unconstitutional. Since then, only four other defendants have been formally charged by the military commission.

Despite the notoriety of the new defendants, nothing is likely to come easily — or quickly. Hartmann said it could be months before the defendants even make an appearance before a commission, which would only be the first step toward a trial.

The prospect of capital punishment is likely to throw the already muddy process into further uncertainty, because courts demand a higher degree of due process when the death penalty is involved. And lawyers for each of the detainees undoubtedly will file motions to sever their client’s case from the other five.

Another potential wrinkle: The Supreme Court is considering a case that concerns whether detainees have the right to challenge their detention in federal court outside the commission process. If it sides with the detainees, that litigation would proceed on a wholly separate track.

Kevin Lanigan, director of the Human Rights First law and security program, said the prosecution of Mohammed and the others was long overdue, but the allegations of torture will complicate a military system that has been problematic from the start.

“The administration still refuses to acknowledge its two greatest self-imposed obstacles to achieving justice for the families and victims of 9/11: the absence of a credible and truly independent system for trying these defendants, and problems caused by the use of official cruelty in interrogating them,” Lanigan said.

Last week, CIA Director Michael Hayden confirmed that Mohammed, the purported mastermind of the attacks, was one of three terrorism suspects in CIA custody who had been subjected to the interrogation technique known as waterboarding.

Waterboarding makes a prisoner believe he is in imminent danger of drowning. The suspect is tied to a board and water is poured through a cloth that covers his face. The practice is prohibited by the Geneva Conventions and the U.S. Army Field Manual, and most of the international community considers the technique torture.

In addition, al-Qahtani, who Pentagon officials say was supposed to have been the 20th hijacker in the Sept. 11 attacks, has alleged that he was tortured and last fall recanted a confession he said he made after he was abused by interrogators.

Jim Cohen, a professor at Fordham Law School who represents two Guantanamo Bay detainees who are not among the six implicated in the Sept. 11 attacks, said the government’s case “smells of utter and complete unreliability.”

“What is the basis for the charges?” Cohen said. “The meaty basis of this case is the statements made by KSM [Khalid Shaikh Mohammed] and others. And [most of] those statements, if not all of them, were made under harsh interrogations.”

Along with the issue of interrogations, a recurring problem facing defense attorneys who have tried to defend detainees before commissions has been access to other detainees as witnesses and to classified material. The Pentagon has continually objected to such access, citing national security concerns. Those will also be issues confronting Judge Crawford.

But Hartmann said the six accused men would be given the same rights as U.S. troops tried under the military justice system.

The suspects, for example, will be allowed to call witnesses and will be appointed military attorneys as well as have the right to hire civilian lawyers. They also will be allowed to review any evidence presented against them, Hartmann said. Any convictions ultimately can be appealed all the way to the Supreme Court.

While the trial will not be televised, journalists will be allowed to attend, and arrangements will be made to allow relatives of Sept. 11 victims to view recordings of the proceedings, Hartmann said.

“There will be no secret trials,” he said. “We will make every effort to make everything open.”

By Aamer Madhani and James Oliphant

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