WaPo : Military Prosecutors Will Seek Death for Sept. 11 Suspects

Military Prosecutors Will Seek Death for Sept. 11 Suspects

By William Branigin | Washington Post Staff Writer | February 11, 2008

The Pentagon announced today that it has charged six detainees at the Guantanamo Bay, Cuba, military prison with conspiring to carry out the Sept. 11, 2001, terrorist attacks and that military prosecutors will seek the death penalty for each.

In a news conference, Air Force Brig. Gen. Thomas W. Hartmann, a Defense Department legal adviser, said the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, are charged with conspiracy, murder in violation of the law of war, attacking civilians and terrorism, among other offenses. He said a charge sheet details 169 overt acts alleged to have been committed by the defendants and uncharged co-conspirators in furtherance of the Sept. 11 plot.

The charges come nearly 6 1/2 years after 19 hijackers belonging to Osama bin Laden's al-Qaeda terrorist network seized four U.S. airliners and used them to attack the World Trade Center in New York and the Pentagon, killing nearly 3,000 people. Two airliners hit the trade center's twin towers, one slammed into the Pentagon and the fourth went down in a field in Pennsylvania after passengers assaulted the hijackers in an attempt to gain control of the aircraft.

The military's announcement brought swift condemnation from a leading civil liberties group and lawyers for one of the accused. They charged that the military commissions cannot conduct fair trials and evidence obtained through torture will be admitted.

Hartmann said Mohammed is accused of being "the mastermind of the 9/11 attacks," which he allegedly proposed to bin Laden as early as 1996. According to the charges, he obtained the funding for the plot and oversaw the entire operation, including the training of the hijackers in Afghanistan and Pakistan.

The trials will be "as open as possible," Hartmann said, and the accused will have the right to call their own witnesses, cross-examine prosecution witnesses and see the evidence presented against them.

"There will be no secret trials," he said. "Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to . . . the military tribunal will be reviewed by the accused, subject to confrontation, subject to cross- examination, subject to challenge. . . ."

But Hartmann declined to answer questions about the admissibility of evidence obtained against Mohammed by waterboarding, a technique that the CIA has acknowledged using to extract information from him and from two other al-Qaeda members who are not among those charged today. The technique, which simulates drowning, has been widely described as torture.

Mohammed confessed at a Guantanamo Bay military hearing that he planned and funded the Sept. 11 attacks and was involved in more than two dozen other terrorist acts around the world, according to documents released by the Pentagon last year. He also has admitted killing Wall Street Journal reporter Daniel Pearl in Pakistan in 2002, but Hartmann said that murder is "not one of the charges in this case."

The other men facing charges for the Sept. 11 plot are Walid Muhammad bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed al-Hawsawi and Mohammed al-Qahtani.

Hartmann said bin Attash is accused of administering an al-Qaeda camp in Afghanistan where two of the 9/11 hijackers were trained and of traveling to Malaysia in 1999 to observe airport security measures used by U.S. airlines. He said Binalshibh lived in Germany with three of the hijackers and was originally selected to join them but was unable to obtain a U.S. visa. He then helped find U.S. flight schools for the al-Qaeda pilots and was involved in funding them, Hartmann said.

Hawsawi and Ali, who also is known as Ammar al-Baluchi and is a nephew of Mohammed's, are accused of helping to provide the hijackers with money and other items. Qahtani, whom U.S. officials have called the "20th hijacker," allegedly attempted to enter the United States on Aug. 4, 2001, through Orlando International Airport but was denied entry.

In addition to the conspiracy, murder and other charges, four defendants -- Mohammed, bin Attash, Binalshibh and Ali -- are also charged with "the separate substantive offense of hijacking or hazarding an aircraft," Hartmann said.

According to Defense Department transcripts, bin Attash told a military hearing at Guantanamo last year that he organized a suicide attack on a U.S. warship in 2000 and the truck bombing of the U.S. embassies in Kenya and Tanzania in 1998. The Oct. 12, 2000, attack on the USS Cole at a port in Yemen killed 17 American sailors. The embassy attacks killed more than 200 people and injured thousands.

Bin Attash, who is also known as Tawfiq bin Attash, is a native of Yemen, as is Binalshibh. Mohammed and Ali are from Pakistan, and Hawsawi and Qahtani are from Saudi Arabia.

Hartmann said the charges will be forwarded to Susan J. Crawford, the Pentagon official who presides over the military commissions at Guantanamo Bay. She will make independent decisions on whether to refer any or all of the cases to trial by a military commission and whether to designate them death-penalty cases, he said.

Any defendant who faces the death penalty must be tried by a 12-member military commission, which must reach a unanimous verdict, Hartmann said. A decision to impose a capital sentence also must be unanimous, he said.

Prosecutors are recommending that all six defendants be tried together.

The proceedings will not be televised, but arrangements are likely to be made for families of the Sept. 11 victims to view video of the trial, Hartmann said.

In response to questions about the Pentagon's announcement, White House spokeswoman Dana Perino said President Bush played no role in deciding to seek the death penalty or selecting the detainees to be charged. She declined to comment when asked if the White House had any concern about the admissibility of evidence obtained through waterboarding.

Perino also said the prospect of shutting down the detention facility at Guantanamo is separate from the issue of the trials. She said the detainee population there has been reduced by more than half from its peak -- to fewer than 300 now -- but that some countries are refusing to take back their citizens.

Shortly after the Sept. 11 attacks, the Bush administration set up a system of military tribunals to try alleged 9/11 plotters and other accused terrorists, but the effort promptly ran into legal challenges. In 2006, the U.S. Supreme Court delivered a stunning rebuke to the administration over the tribunals, ruling that they violated U.S. and international law. The court said trials before such tribunals were not authorized by any act of Congress and that their structure and procedures did not meet requirements of the Uniform Code of Military Justice and the 1949 Geneva Conventions.

In response to that decision, Congress passed the Military Commissions Act of 2006, which authorizes trials of terrorist suspects at Guantanamo. Proponents said the act guarantees fair trials under rules consistent with those used by the military to try American service members, but critics charged that the system still falls short of international standards.

Rules issued by the Pentagon in January 2007 to implement the law permit the admission of hearsay evidence, as well as coerced statements that were obtained from detainees before Dec. 30, 2005, the effective date of a separate law known as the Detainee Treatment Act.

Hartmann told reporters that Crawford, as the "convening authority" for the military commissions, has "sole discretion" to decide whether the defendants will face the death penalty after she reviews the charges and evidence against them. Once she completes that review, the accused are to be arraigned within 30 days, and the military court is to be assembled within 120 days.

After the trial, Crawford would review the sentence of any defendant who was found guilty. The defendant would then have the right to appeal to the Court of Military Commission Review. Higher courts with jurisdiction are the U.S. Court of Appeals for the District of Columbia Circuit and, potentially, the Supreme Court, Hartmann said.

He said that "there may be limited circumstances in which classified evidence would be presented" in the military commission trials. But he said prosecutors have advised him "that relatively little amounts of evidence will be classified" and that the tribunal will have "rules of evidence in place to deal with that."

In a statement on the Pentagon's announcement, the American Civil Liberties Union sharply criticized the commissions.

"Those accused of planning the September 11 attacks should be brought to justice, but a credible trial is impossible under a flawed military commissions system lacking in basic due process protections and allowing for the admission of coerced testimony, possibly obtained through practices condemned throughout the world as torture," said ACLU Executive Director Anthony D. Romero. "The American legal system will be as much on trial in these cases as the actual detainees."

The Center for Constitutional Rights, which represents one of the defendants, called the commissions "unlawful, unconstitutional and a perversion of justice." It charged that its client, Qahtani, the alleged 20th hijacker, was tortured under interrogation during his nearly six years at Guantanamo. Among other methods, the center said, interrogators subjected him to beatings, sleep deprivation, sexual humiliation, attacks by dogs, acute stress positions, and "exposure to loud music for prolonged times."

"The government's allegations against Mr. al-Qahtani are inherently tainted by the stench of torture," the center said in a statement.