IHT : Hurdles seen for 9/11 death penalty case

Hurdles seen for 9/11 death penalty case

By William Glaberson | Tuesday, February 12, 2008

WASHINGTON: Military prosecutors filed capital charges against a former senior leader of Al Qaeda and five other Guantánamo detainees on Monday for their roles in the Sept. 11 terror attacks, but the possible obstacles facing a death penalty case in the Bush administration's military commission system were immediately apparent.

Colonel Steven David, the chief military defense lawyer for the Guantánamo cases, who must provide detainees with military lawyers, said he did not have six lawyers available to take the cases, which the Pentagon described as a milestone in the war on terror.

In addition, he noted, a tangle of questions are unanswered in the military commission system, which has yet to begin a single trial. They include whether waterboarding constitutes torture, how statements obtained by coercion are to be handled, whether detainees may be so psychologically damaged that they may not be able to assist in their defense and exactly what the rules of the trials are to be.

All of which, David said, means there are no answers to what happens next in the most important case in the Guantánamo system, and how long it will take.

"You're asking me to tell you how we're going to get to a place we've never been, with a map I don't have," David said.

At the announcement of the charges in Washington on Monday, a senior Pentagon official in the Office of Military Commissions, Brigadier General Thomas Hartmann, described the charges in sweeping terms. He portrayed the Guantánamo system as a painstaking one that will, in the American tradition, sort out conflicting viewpoints in the courtroom.

"We will follow the rule of law," Hartmann said.

But some lawyers asked, precisely what law applies?

Neal Katyal, a Georgetown University law professor who represents a Guantánamo detainee, said the Bush administration's decision to use a military commission system, rather than civilian courts, meant that standard procedures did not apply. That is a prescription for uncertainty, he said.

"When you are using an untested system," Professor Katyal said, "every single question is up for grabs and every issue is litigated."

It is not clear whether the government will apply civilian rules holding that death penalty cases are to be treated with extraordinary care — that "death is different," as the legal maxim has it; or how a death penalty might be carried out, or where. It is not even clear how much of the proceedings may take place in sealed courtrooms.

Guantánamo cases are conducted under a 2006 law that assures detainees in war crimes trial the right to a lawyer, the right to have charges proved beyond a reasonable doubt and the right to appeal.

Hartmann said Monday that officials were committed to conducting fair trials, that resources would be provided to the military defense lawyers and that trials would be closed as little as possible for national security reasons.

Those charged Monday include Khalid Shaikh Mohammed, the former Qaeda operations chief who has said he was responsible for the Sept. 11 attacks, and five other men held at Guantánamo who are said to have played supporting roles. The charges include conspiracy, murder in violation of the law of war, attacking civilians, terrorism and providing material support for terrorism.

Mohammed and most of the other detainees charged Monday are not believed to have had any contact with a lawyer. Several experienced Guantánamo defense lawyers said the task facing any lawyer who took their cases would be so uncertain that no trial could begin for many months, or years.

Military judges in Guantánamo have acknowledged that basic legal concepts require that defense lawyers review most of the government's evidence, though the rules remain unclear and some material is to be kept from the defense under national security rules.

In the case of Mohammed, some lawyers said, the government's file is likely to be a vast pile of intelligence reports and interrogation summaries that include the simulated drowning technique known as waterboarding. The Central Intelligence Agency has acknowledged that Mohammed was subject to the technique.

Some lawyers have said the obvious defense strategy at Guantánamo will be to try to put the government on trial for its use not only of waterboarding, but also of coercive techniques like keeping detainees in cold rooms for hours and permitting sexually suggestive techniques by interrogators.

Whatever the eventual courtroom strategy, the sheer volume of material to be sorted means defense lawyers will need time, said Joseph Margulies, a lawyer for detainees who teaches at Northwestern University School of Law.

"The government has devoted literally years and thousands of person-hours to refinement of those charges," Margulies said.

But David, the Guantánamo chief defense lawyer, said it remained unclear how the defense was to begin to close that gap. In all, he said, he has seven lawyers available to handle cases, with many of then already assigned to other detainees.

Though prosecutors are relying on evidence gathered by vast American and foreign intelligence agencies, David said his office roster now included one intelligence analyst and six paralegals. He said the defense office had yet to have a secure room that was required to review reams of classified documents.

In addition to Mohammed, each of the other defendants charged Monday has a complex story that defense lawyers will need to unravel.

The others are Mohammed al-Qahtani, the man officials have labeled the 20th hijacker, who was denied entry into the United States in August 2001; and four men who officials have said were logistical coordinators, Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi and Walid bin Attash.

The prosecutors' decision to seek the death penalty must be reviewed by a Pentagon official with broad power over the military commission system, Susan Crawford.

If Crawford refers the case for trial as a capital case, it will be the start of a mammoth legal battle, said Neal Sonnett, a Miami lawyer who has been an observer at Guantánamo for the American Bar Association.

Any life-or-death case would be complex, Sonnett said. But that would be a special challenge for the Guantánamo system, which has not yet reached even the first day of its first trial, he said.

"It hasn't been able to get over the small humps yet," Sonnett said, "and this is a mountain."