http://www.nytimes.com/2008/02/11/wa...gewanted=print
February 11, 2008
U.S. Presents Charges Against 6 in Sept. 11 Case
By WILLIAM GLABERSON
WASHINGTON — Six Guantánamo detainees who are accused of central roles in the terror attacks of Sept. 11, 2001, will be shown all the evidence against them and will be afforded the same rights as American soldiers accused of crimes, the Pentagon said Monday as it announced the charges against them.
Military prosecutors will seek the death penalty for the six Guantánamo detainees on charges including conspiracy and murder “in violation of the law of war,” attacking civilians and civilian targets, terrorism and support of terrorism, Brig. Gen. Thomas Hartmann of the Air Force, legal adviser to the Defense Department’s Office of Military Commissions, said at a Pentagon news briefing.
General Hartmann said it would be up to the trial judge how to handle evidence obtained through controversial interrogation techniques like “waterboarding,” or simulated drowning. Critics have said the harsh techniques, which are believed to have been used on several of the defendants, amount to torture.
As expected, the six include Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the Sept. 11 attacks, which killed nearly 3,000 people.
“The accused are, and will remain, innocent unless proved guilty beyond a reasonable doubt,” General Hartmann said.
Altogether, the defendants and others not yet charged are believed to have committed 169 “overt acts” in furtherance of the attacks, General Hartmann said. The charges are being translated into the native language of each of the accused and will soon be served on them, he said.
A Defense Department official said in advance of the announcement that prosecutors were seeking the death penalty because, “if any case warrants it, it would be for individuals who were parties to a crime of that scale.” The terror attacks, in which civilian airliners were hijacked and deliberately crashed into the World Trade Center and the Pentagon, were the deadliest in American history.
The decision to seek the death penalty will no doubt increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial. The death penalty is an issue that has caused friction for decades between the United States and many of its allies who consider capital punishment barbaric.
“The system hasn’t been able to handle the less-complicated cases it has been presented with to date,” said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.
In addition to Mr. Mohammed, the other five being charged include detainees who officials say were coordinators and intermediaries in the plot, among them a man labeled the “20th hijacker,” who was denied entry to the United States in the month before the attacks.
Under the rules of the Guantánamo war-crimes system, the military prosecutors can designate charges as capital when they present them, and it is that first phase of the process that is expected this week. The military official who then reviews them, Susan J. Crawford, a former military appeals court judge, has the authority to accept or reject a death-penalty request.
General Hartmann said he could not predict when actual trials would begin, but that pretrial procedures would take several months at least. He said the accused will enjoy the same rights that members of the American military enjoy, and that the proceedings will be “as completely open as possible,” notwithstanding the occasional need to protect classified information.
In no sense will the proceedings be secret, the general said. “Every piece of evidence, every stitch of evidence, every whiff of evidence” will be available to the defendants, General Hartmann said.
Some officials briefed on the case have said the prosecutors view their task in seeking convictions for the Sept. 11 attacks as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.
Even if the detainees are convicted on capital charges, any execution would be many months or, perhaps years, from being carried out, lawyers have said, in part because a death sentence would have to be scrutinized by civilian appeals courts.
Federal officials have said in recent months that there is no death chamber at the detention camp at the United States naval base at Guantánamo Bay, Cuba, and that they knew of no specific plans for how a death sentence would be carried out.
The military justice system, which does not govern the Guantánamo cases, provides for execution by lethal injection in death sentence convictions. But the United States military has rarely executed a prisoner in recent times.
The last military execution was in 1961, when an Army private, John A. Bennett, was hanged after being convicted of rape and attempted murder. Currently, there are six service members appealing military death sentences, according to a recently published article by a lawyer who specializes in military capital cases, Dwight H. Sullivan, a former chief military defense lawyer at Guantánamo.
General Hartmann said Mr. Mohammed is believed to have presented the idea of an airliner attack on the United States to Osama bin Laden in 1999 and then coordinated its planning.
The others being charged are Mohammed al-Qahtani, the man officials have labeled the 20th hijacker; Ramzi bin al-Shibh, said to have been the main intermediary between the hijackers and leaders of Al Qaeda; Ali Abd al-Aziz Ali, known as Ammar al-Baluchi, a nephew of Mr. Mohammed, who has been identified as Mr. Mohammed’s lieutenant for the 2001 operation; Mr. al-Baluchi’s assistant, Mustafa Ahmed al-Hawsawi; and Walid bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the hijackers.
Ramzi bin al-Shibh was supposed to have been a 20th hijacker, and made a videotape portraying himself as a martyr, General Hartmann said. But he was unable to obtain a United States visa, and so had to content himself with helping the eventual hijackers find flight schools and with carrying out financial transactions to further the plot, the general said.
Relatives of the Sept. 11 victims have expressed differing views of potential death sentences, with some arguing that it would accomplish little other than martyring men for whom martyrdom may be viewed as a reward.
But on Sunday, Debra Burlingame, whose brother Charles F. Burlingame III was the pilot of the hijacked American Airlines Flight 77 that was crashed into the Pentagon, said she would approve of an effort by prosecutors to seek the execution of men she blames for killing her brother. Ms. Burlingame said such a case could help refocus the public’s attention on what she called the calculated brutality of the attacks, which she said has been largely forgotten.
“My opinion is,” she said, “if the death of 3,000 people isn’t sufficient for a death penalty in this country, then why do we even have the death penalty?”
Lawyers said a prosecution move to seek the death penalty in six cases that will draw worldwide attention was risky. They said it would increase the stakes at Guantánamo partly by amplifying the attention internationally to cases that would draw intense attention in any event.
The military commission system has been troubled almost from the start, when it was set up in an order by President Bush in November 2001. It has been beset by legal challenges and practical difficulties, including a 2006 decision by the Supreme Court striking down the administration’s first system at Guantánamo. Although officials have spoken of charging 80 or more detainees with war crimes, so far only one case has been completed, and that was through a plea bargain.
Eric M. Freedman, a Hofstra University law professor who has been a consultant to detainees’ lawyers, said a decision to seek the death penalty would magnify the attention on each of the many steps in a capital case. Intense scrutiny, he said, “would be drawn to the proceedings both legally and politically from around the world.”
Some countries have been critical of the United States’ use of the death penalty in civilian cases, and a request for execution in the military commission system would import much of that criticism to the already heated debates about the legitimacy of Guantánamo and the Bush administration’s legal approach there, some lawyers said.
Tom Fleener, an Army Reserve major who was until recently a military defense lawyer at Guantánamo, said that bringing death penalty cases in the military commission system would bog down the untested system. He noted that many legal questions remain unanswered at Guantánamo, including how much of the trials will be conducted in closed, secret proceedings; how the military judges will handle evidence obtained by interrogators’ coercive tactics; and whether the judges will require experienced death-penalty lawyers to take part in such cases.
“Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba,” Major Fleener said.
Professor Glazier of Loyola said the military commission system was devised to avoid many of the hurdles that have slowed civilian capital cases. Still, he said, he expected intense scrutiny and criticism of such cases that could slow proceedings.
In any event, vigorous trial battles and appeals would probably mean that no execution would be imminent. “It certainly seems impossible to get this done by the end of the Bush administration,” Professor Glazier said.
General Hartmann said nothing to counter that impression. Asked whether executions would take place at Guantánamo or elsewhere, he noted that a defendant who is convicted will have the right to several levels of appeal. “So we are a long way from determining the details of the death penalty, and when that time comes, if it should ever come at all, we will follow the law at that time and the procedures that are in place at that time,” the general said.
David Stout contributed reporting from Washington.
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