The United States military announced yesterday that it was bringing death penalty charges against Khalid Sheikh Mohammed and five other men suspected of orchestrating the September 11 attacks, and intended to try them under the Bush administration's much-criticised military tribunal system, which is subject only to partial oversight by the civilian appeals system.

    The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.

    Concerns were raised last night of political interference by the White House in the military's decision to go to trial in the middle of an election campaign in which the Republican frontrunner, John McCain, has made the fight against al-Qa'ida central to his election bid.

    "What we are looking at is a series of show trials by the Bush administration that are really devoid of any due process considerations," said Vincent Warren, the executive director head of Centre for Constitutional Rights, which represents many Guantanamo detainees. "Rather than playing politics the Bush administration should be seeking speedy and fair trials," he said. "These are trials that are going to be based on torture as confessions as well as secret evidence. There is no way that this can be said to be fair especially as the death penalty could be an outcome."

    While few doubts have been raised, domestically or internationally, about the men's involvement in the attacks on New York and Washington, just about everything else about their treatment has been bitterly contested and is likely to continue to be contested, inside the courtroom and out. Everything is laden with potential controversy - the decision to try the six men together rather than individually, the proposed venue at Guantanamo Bay, where all six are being held, the threatened use of the death penalty, and perhaps the most controversial question of all: the admissibility of evidence gathered through waterboarding and other coercive techniques generally defined as torture.

    Even Brig-Gen Thomas Hartmann, the Pentagon official co-ordinating the case, acknowledged yesterday that it could be several months before a trial begins and months more, if not years, before any death penalty - assuming it is enforced - is carried out.

    General Hartmann was careful to say that he wanted the trial proceedings to be "as completely open as possible", with lawyers and journalists present in the courtroom - barring the possibility of some closed sessions to consider classified information. He stressed that the men would be regarded as innocent until proven guilty, just as they would in a civilian court. And he promised to provide "every piece of evidence, every stitch of evidence, every whiff of evidence" to the defendants' lawyers so they would be fully able to prepare for trial.

    That did little to stop Clive Stafford Smith, the British lawyer who has worked on behalf of "enemy combatants" at Guantanamo, to issue a condemnation of the "kangaroo court". He said: "Anyone can see the hypocrisy of espousing human rights, then trampling on them. We will infuriate our allies who firmly oppose the death penalty. We will anger the world."

    Aside from Mohammed, alleged to be the mastermind who planned and coordinated the September 11 attacks, the defendants are Mohammed al-Qahtani, labelled by US officials the "20th hijacker" who never made it on board any of the planes that were crashed; Ramzi Bin al-Shibh, an associate of Mohammed Atta's in Hamburg who is believed to have acted as an intermediary between the hijackers and the al-Qa'ida leadership; Ali Abd al-Aziz Ali, a nephew of Mohammed's suspected of acting as his chief lieutenant; Waleed bin Attash, believed to have trained the hijackers; and Mustafa Ahmad al-Hawsawi.

    But contrary to General Hartmann's assurances, it is far from clear what rights any of these men will have. The Supreme Court, which struck down an earlier version of the military tribunal system, is expected to rule before July on whether the protections of the US Constitution apply to them.

    Several commentators noted yesterday that the Bush administration is taking a risk by trying to press ahead with the trials. Its previous efforts to pursue justice against suspected terrorists have been patchy, if not downright disastrous.

    Zacarias Moussaoui, the French national previously labelled the 20th hijacker, escaped the death penalty at his civilian trial and emerged as a deeply disturbed individual scarcely capable of participating in a sophisticated guerrilla operation - much to the embarrassment of the federal prosecutors who tried him in civilian court in Virginia.

    Jose Padilla, the US citizen accused of wanting to detonate a radioactive "dirty bomb", won the argument that he could not be held indefinitely in military custody without trial and went on trial in civilian court. He received a far lighter sentence than his prosecutors were seeking - 17 years instead of 30 to life.

    The Bush administration appears to believe that, politically at least, it can win the argument by stirring up the country's emotions about the worst peacetime attack on its own soil.

    Facing Execution

• Khalid Sheikh Mohammed

      The Pakistani, educated in the US, claims responsibility for 31 attacks and plots including the 9/11 attacks and the beheading of Wall Street Journal reporter Daniel Pearl. Accused of being military commander for al-Qa'ida's foreign operations. Captured in Pakistan in 2003 and taken to Guantanamo Bay from secret CIA prison. During interrogation, was subjected to simulated drowning technique known as waterboarding.

• Ali Adb Al-Aziz Ali

      A nephew of Khalid Sheikh Mohammed and cousin of jailed 9/11 bomber Ramzi Yousef. Accused of facilitating the attacks by transferring $120,000 to US-based operatives and assisting nine hijackers on their way from Pakistan.

• Ramzi Bin al-shibh

      The former room-mate of Mohamed Atta is accused of being a link between al-Qa'ida and the hijackers. The Pentagon says he helped find flight schools for the al-Qa'ida pilots.

• Walid Bin Attash

      The Yemeni, who was raised in Saudi Arabia, is accused of running al-Qa'ida camp in Afghanistan where he trained two 9/11 hijackers. Has admitted planning the attack on the USS Cole, and has also claimed involvement in the bombing of the US embassy in Kenya.

• Mustafa Ahmad al-hawsawi

      The Saudi national is accused of being a money-man for the 9/11 attackers. The Pentagon says he provided them with cash, Western clothing, credit cards traveller's cheques.

• Mohammed al-Qahtani

      Officials say he was meant to be one of the hijackers but was barred from the US by immigration officials at Orlando Airport. Captured at Tora Bora caves in Afghanistan.

 

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    Trial's Focus to Suit Bush

    By Steven Lee Myer

    The New York Times

    Tuesday 12 February 2008

    Washington - Harsh interrogations and Guantánamo Bay, secret prisons and warrantless eavesdropping, the war against Al Qaeda and the one in Iraq. On issue after issue, President Bush has showed little indication that he will shrink from the most controversial decisions of his tenure.

    With the decision to charge six Guantánamo detainees with the attacks of Sept. 11, 2001, and to seek the death penalty for the crimes, many of those issues will now be back in the spotlight. In an election year, that appears to be exactly where Mr. Bush wants the focus to be.

    The White House said on Monday that Mr. Bush had no role in the decision to file charges now against the six detainees, leaving the strategy for prosecuting them to the military.

    Still, the cases soon to be put before military tribunals - including that against Khalid Shaikh Mohammed, who has described himself as the mastermind of the attacks - represent a major part of "the unfinished business" that Mr. Bush and his aides talk about when they vow "to sprint to the finish," as one aide did again on Monday.

    Mr. Bush never sounds surer of himself than when the subject is Sept. 11, even when his critics argue that he has squandered the country's moral authority, violated American and international law, and led the United States into the foolhardy distraction of Iraq.

    "Six and a half years ago, our country faced the worst attack in our history," Mr. Bush said late last week, speaking to the Conservative Political Action Conference. "I understood immediately that we would have to act boldly to protect the American people. So we've gone on the offense against these extremists. We're staying on the offense, and we will not relent until we bring them to justice."

    The 9/11 candidate, Rudolph W. Giuliani of New York, may have dropped his bid for the White House. But the 9/11 presidency is far from over.

    On the question of warrantless wiretapping, widely expanded after the Sept. 11 attacks, Mr. Bush is pushing to make permanent legislation that last year made a once-secret program legal, despite a storm of protest that has reverberated since 2005, when the program was disclosed.

    Only a year ago, Iraq appeared to have deflated the president's popularity and eroded his standing even among Republicans and the Pentagon's generals. But Mr. Bush now appears to have laid a foundation to keep more than 130,000 American troops on the ground in a mission he has justified as part of a broader fight against terrorism, despite an overwhelming groundswell against an unpopular conflict. Secretary of Defense Robert M. Gates on Monday essentially endorsed a "pause" in further troop withdrawals once those troops sent in last year as part of a temporary buildup go home.

    In each of these cases - the military tribunals, the wiretapping legislation, Iraq - the White House seems eager to lock in as many of the president's policies as possible before he leaves office in 11 months. And as it looks ahead to the November elections, the White House seems to have concluded that each is politically sustainable and even favorable for a Republican candidate and Mr. Bush's own legacy.

    Whether the White House will succeed - and November will certainly be the measure - remains to be seen.

    Democrats have battled before, with mixed success, against Republican efforts to portray them as weak on defense. This time, the Democrats sound determined to fight back more forcefully.

    "I wish they had as coherent a strategy for fighting the war on terror as they do for politicizing the war on terror," Representative Rahm Emanuel of Illinois, chairman of the House Democratic Caucus, said on Monday.

    The legality of military tribunals has been in dispute since the days immediately after the Sept. 11 attacks. It is possible that the trials could backfire by underscoring the administration's failures as well as any successes in bringing some of America's most-wanted to justice.

    "The American public doesn't need to put them on trial at this point to prove we got the bad guys," said Jennifer Daskal, a lawyer at Human Rights Watch in Washington. "I think the focus is going to be on the unfairness of the trials and the use of highly abusive interrogations."

    Just last week, Gen. Michael V. Hayden, the director of the Central Intelligence Agency, became the first government official to acknowledge publicly that those interrogations, in three cases, included the technique known as waterboarding, which simulates drowning and is regarded by many as torture.

    Mr. Bush's administration, however, appears to have calculated that many Americans, if not most, do not necessarily object to harsh interrogations or eavesdropping if they were used to prevent further attacks.

    At a fund-raiser on Friday in Pennsylvania, hardly the most conservative state, Vice President Dick Cheney vigorously defended the use of waterboarding and other harsh interrogation techniques, referring to them as "a tougher program for a very few tougher customers."

    "He and others were questioned at a time when another attack on this country was believed to be imminent," Mr. Cheney said of Mr. Mohammed and other Qaeda members. "It's a good thing we had them in custody, and it is a good thing that we found out what they knew."

    Of the six men charged on Monday, Mr. Mohammed and four others were held for as long as three years in the secret C.I.A. prisons that were part of what the agency calls its "high-value terrorist interrogation program." The prisons were established in 2002, but the administration did not publicly reveal their existence until 2006, when Mr. Mohammed and other detainees were moved from the C.I.A. facilities to the military prison in Guantánamo Bay, Cuba.

    In a statement to C.I.A. employees on Monday, General Hayden called the filing of charges "a crucial milestone on the road to justice for the victims of 9/11."

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    Carl Hulse contributed reporting.

 

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    Early Trial Unlikely for Six Accused in 9/11 Attacks

    By Carol Rosenberg and Nancy A. Youssef

    McClatchy Newspapers

    Monday 11 February 2008

    Washington - The U.S. military is scrambling to assemble defense teams for six Guantanamo detainees who are facing the death penalty for their alleged roles in the Sept. 11, 2001, terrorist attacks that killed nearly 3,000 people.

    Knowledgeable legal experts, however, said it's unlikely that they can be tried speedily, meaning the cases probably won't be heard before the Bush administration leaves office next January.

    "I will move as quickly as I can, but we will take our time and we will not be bullied by the government," said Army Col. Steve David, the chief defense counsel in the Pentagon's Office of Military Commissions.

    "I believe this is a defining moment in our history, and we are going to take our time to do it right," he said.

    "Any attempt to do these cases in 2008 would be a mockery," said Joseph Margulies, a professor at the Northwestern University School of Law and a noted death penalty expert. He said that it would take at least a year for lawyers to familiarize themselves with the evidence against the six men.

    The Pentagon Monday announced charges against the six that include conspiracy, murder in violation of the law of war, attacking civilians and terrorism. Among those charged was Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks.

    It was the first time that U.S. authorities have charged anyone held at Guantanamo with direct involvement in the Sept. 11 attacks.

    Prosecutors face a series of hurdles in bringing the cases, including likely battles over what evidence they'll be allowed to bring before the military commissions that will hear the cases.

    The law that created the commissions forbids the use of evidence gathered by torture. Last week, CIA director Gen. Michael Hayden acknowledged to Congress that Mohammed and two other CIA detainees had been subjected to waterboarding, a technique that simulates the sensation of drowning. Hayden said in his testimony that the technique might not be legal, but the Bush administration has said that waterboarding isn't torture.

    "If the government wants to use those statements or anything derived from those statements, it will have a serious problem," said Eugene Fidell, a Washington, D.C. attorney who specializes in military law.

    David, an Indiana state judge who was mobilized to his current job, said that his office has nowhere near enough staff members to handle the defense of the six 9/11 defendants.

    He said he'd need at least six lawyers, six paralegals and six independent investigators with top security clearances to work on the trials. As of Monday morning, he said, seven military lawyers had been assigned to his office. Six of those are already assigned to other cases.

    The seventh - an Army major - began work Monday, and David said he didn't know if the new man had either death penalty defense experience or the necessary security clearances.

    In the charging documents released Monday, the military spelled out how the six allegedly plotted the attacks, trained to fly planes, moved funds and practiced how to hide knives in their luggage.

    The documents charge that Mohammed orchestrated the attacks and regularly updated al Qaida leader Osama bin Laden on the plot's progress. Mohammed was captured in Pakistan in 2003.

    Outlining the plot took up 22 of the charging document's 88 pages. The remainder listed the names of the 2,973 people who died in the attacks.

    The other five charged were:

• Mohammed al Qahtani, whom the military said could have been the 20th hijacker had he not been turned down for a visa;
• Ramzi Binalshibh, who's considered a top al Qaida detainee in Guantanamo. The military called Binalshibh a main intermediary between the hijackers and bin Laden. He also was named Mohammed's main assistant for "Planes Operations";
• Ali Abd al Aziz Ali, a nephew of Khalid Sheikh Mohammed;
• Mustafa Ahmad al Hawsawi, who helped move money among the hijackers;
• Waleed bin Attash, who's charged with training some of the hijackers. For example, the military alleges that he prepared reports for al Qaida on to get knives onto flights.

    The charges still must be approved by a civilian Pentagon official.

    Only one of the six - Qahtani - has seen a lawyer during his five-plus years in U.S. custody, and it wasn't clear whether that lawyer, Gitanjali Gutierrez of the New York Center for Constitutional Rights, would represent him at the war crimes trial.

    Other lawyers said it was unlikely that private civilian lawyers would be willing to help defend accused 9/11 conspirators.

    "You need someone who is independently wealthy and has no concern for his physical safety," said Washington, D.C. attorney David Remes of Covington and Burling, who's filed petitions on behalf of Yemenis held at Guantanamo.

    "No firm with substantial resources that works for corporations is going to take the cases of these men, because being accused of plotting the 9/11 attacks is different in kind from being accused of being a mere foot soldier," Remes said. "If the accusations against these men are correct, they really are the worst of the worst."

    The Military Commissions Act of 2006 prohibits federal funds from being used in the alleged terrorists' defense, which would bar the use of federal public defenders, and resources to mount a defense would be scarce even for attorneys willing to undertake the cases.

    "If private counsel wants to get involved, they have to do it for free, pass around a hat, or be paid for by a private organization," said Margulies, who's handling an unrelated wrongful detention case for another Guantanamo detainee, Abu Zubaydah, who was one of the three prisoners that Hayden said was waterboarded.

    Defense lawyers, Margulies said, will need at least a year to familiarize themselves with the cases against their clients, find translators with the proper security clearances to speak help them speak with their clients and hire investigators to review highly classified information.

www.truthout.org/docs_2006/021208J.shtml