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Thread: Key 9/11 Suspect To Be Tried In New York

  1. #121
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    Khalid Sheik Mohammed, alleged 9/11 mastermind, to get new trial

    http://www.washingtonpost.com/world/...OvS_story.html

    By Peter Finn, Wednesday, April 4, 12:29 PM

    A senior Pentagon official on Wednesday authorized a new trial for Khalid Sheik Mohammed and four others accused of orchestrating the Sept. 11, 2001, attacks, a step that restarts the most momentous terrorism case likely to be held at Guantanamo Bay, Cuba.

    The suspects were first charged in a military commission in 2008, but the case was suspended after the Obama administration came into office and later moved to have them tried in federal court in New York.

    Most-wanted al-Qaeda terrorists: The death of Osama bin Laden has not fully disabled his terrorist group. Here’s a look at individuals deemed the most wanted terrorists in al-Qaeda.

    That effort collapsed in the face of congressional and local opposition. In April 2011, Attorney General Eric H. Holder Jr. announced that he was reluctantly sending the case back to the military.

    Military charges against the five men were re-sworn in June, and on Wednesday, retired Vice Adm. Bruce MacDonald, the official who oversees the commissions and is known as the Convening Authority, sent the case for trial after reviewing and approving those charges.

    The men face multiple charges, including murder in violation of the law of war, attacking civilians, attacking civilian objects, hijacking aircraft and terrorism. If convicted, they could face the death penalty.

    Charged along with Mohammed are Ali Abdul Aziz Ali, a Pakistani who is Mohammed’s nephew; Ramzi Binalshibh and Walid bin Attash, both Yemenis; and Mustafa al-Hawsawi, a Saudi. All are accused of playing key organizational or financial roles in the attacks on New York and the Pentagon, a plot that Mohammed has said he masterminded.

    In the previous case, Mohammed, Ali and Attash won the right to represent themselves with advisory military and civilian counsel. A military judge was considering whether Binalshibh and Hawsawi were competent to make that choice when the case was suspended.

    An arraignment will be held at the military prison at Guantanamo Bay next month, and all of the pretrial issues that surfaced in the earlier case will have to be litigated again, including the issue of self-representation and the mental health and capacity of Binalshibh and Hawsawi.

    Each of the defendants is entitled to a military attorney and “learned counsel,” a lawyer with experience in death penalty cases.

    At one point in the last case, the defendants said they were interested in pleading guilty to capital charges because they wanted to be executed and die as martyrs. Next month’s arraignment should make clear whether Mohammed wants to fight the charges or is still interested in pleading guilty.

    The other defendants have tended to follow his lead.

    All five men were held in secret CIA custody at prisons overseas before they were transferred to Guantanamo in September 2006. Their treatment at the hands of the CIA, including the extensive waterboarding of Mohammed, is likely to be an issue at trial.

    Under the reformed system of military commissions, prosecutors cannot use as evidence any statement that resulted from torture or cruel, inhumane or degrading treatment. But attorneys for the accused are nonetheless likely to make their treatment a central plank of any defense against the death penalty.

    Some civil libertarians remain deeply skeptical of the system.

    “The military commissions were set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial,” said Anthony D. Romero, executive director of the ACLU. “Although the rules have been improved, the military commissions continue to violate due process by allowing the use of hearsay and coerced or secret evidence.”

    But military officials said that the commissions, which were reformed in 2009 by Congress, offer defendants due process. They also said the use of hearsay or coerced evidence is strictly limited to some unique circumstances on the battlefield and is not a back door for tainted evidence.

    “If observers withhold judgment for a time, the system they see will prove itself deserving of public confidence,” Brig. Gen. Mark Martins, the chief military prosecutor at Guantanamo Bay, said in a speech this week at Harvard Law School.
    No One Knows Everything. Only Together May We Find The Truth JG


  2. #122
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    Pentagon approves 9/11 death penalty trial
    Khalid Sheik Mohammed and four other detainees in GuantĂĄnamo Bay will soon be presented with charges, then face a joint trial before a military commission on allegations they orchestrated the worst terror attack in U.S. history.

    http://www.miamiherald.com/2012/04/0...to-resume.html

    By CAROL ROSENBERG
    crosenberg@MiamiHerald.com

    The Pentagon on Wednesday cleared the way for a death penalty trial against five GuantĂĄnamo Bay captives charged with engineering the Sept. 11 attacks.

    Retired Vice Adm. Bruce MacDonald, in charge of military commissions, signed off on the capital trial against alleged mastermind Khalid Sheik Mohammed, 46, and four accused co-conspirators.

    The men face charges of terrorism, hijacking aircraft, conspiracy and murder in violation of the law of war, among other charges, in the system set up by President George W. Bush within months of the attack, and then reformed by President Barack Obama in 2009.

    If convicted, they could be sentenced to death using a method to be decided by Secretary of Defense Leon Panetta, or his successor.

    The charges accuse the five men of organizing the attacks, including funding and training the 19 men who hijacked the four commercial airliners on Sept. 11, 2001, and then crashed them into the World Trade Center, Pentagon and a field in Shanksville, Pa., killing 2,976 people.

    The lead trial attorneys are retired Army Col. Robert Swann and federal prosecutor Edward Ryan — the same two men who were designated to prosecute the case by the Bush administration.

    Obama halted the previous trial and Attorney General Eric Holder was initially determined to prosecute them in Manhattan, not far from the site of the World Trade Center. But he reversed course a year ago after politicians protested, alternately, that a federal prosecution would put an even large al Qaida bull’s-eye on New York City, would snarl traffic for security concerns or would risk acquittal if a civilian judge or jury concluded that the evidence against them was the fruit of torture.

    Pentagon prosecutors have been preparing their case since then.

    At the White House, spokesman Jay Carney said the decision to go forward with the trial at Guantanamo did not diminish Obama's desire to close the detention center.

    “There have obviously been obstacles in achieving that. But he remains committed to doing that,” said Carney. “In the meantime, we have to ensure that Khalid Sheik Mohammad and others who are accused of these heinous crimes are brought to justice. And a procedure is now underway to ensure that that happens.”

    The decision drew a rebuke from the American Civil Liberties Union, which has funded some of the 9/11 defense lawyers.

    The Obama Administration “is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice,” said Anthony Romero, the ACLU executive director. He said the war court was “set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial.”

    “Whatever verdict comes out of the Guantánamo military commissions will be tainted by an unfair process and the politics that wrongly pulled these cases from federal courts, which have safely and successfully handled hundreds of terrorism trials.”

    All five men were interrogated by the CIA in secret overseas prisons — Mohammed was waterboarded 183 times, according to declassified CIA documents — before their 2006 transfer to Guantánamo for trial. Once in Cuba, he bragged to a panel of U.S. military officers that he was responsible for the Sept. 11 attacks “from A to Z.”

    The chief prosecutor, Army Brig. Gen. Mark Martins, has said that by law no evidence derived through torture can be used at a GuantĂĄnamo trial.

    MacDonald signed the 123-page charge sheet alleging the five men engaged in a years-long conspiracy that trained the 9/11 hijackers in Afghanistan and Pakistan, funded them in wire transfers from Persian Gulf nations and dispatched some of them to the United States from Germany. It will be up to an 11-member team of U.S. prosecutors to prove it to a military jury of a dozen or more members.

    But first, the military has to present the charges at the remote prison at the U.S. base in southeast Cuba, assign a judge to the case and give them a formal appearance at the war court compound, Camp Justice, probably in May. Months of pre-trial challenges, including wrangling over defense resources and whether the men are competent to defend themselves, are likely to follow.

    The other four men facing the death penalty charges in the joint trial are Walid bin Attash, 33, a Yemeni; Ramzi Bin al Shibh, 39, a Yemeni; Mustafa al Hawsawi, 43, a Saudi; and Ali Abdul Aziz Ali, 34, a Pakistani who is Mohammed’s nephew and also known as Ammar al Baluchi.

    The Pentagon’s war court witness advocate, Karen Loftus, sent an email to Sept. 11 families on Wednesday advising them of the case development. Some survivors and victims of the 9/11 attacks will be invited to watch the proceedings at Guantánamo, selected through a lottery. Most will be directed to remote viewing sites being set up in Massachusetts, New York, New Jersey and Maryland that will show closed-circuit broadcasts of the proceedings.

    The broadcasts are on a 40-second delay in case someone in court divulges classified information, time enough for an intelligence center to muffle the proceedings behind white noise.

    Loftus also described the military jury that will hear the Sept. 11 mass murder trial as “a panel of at least 12 members, whose function is analogous to jurors in a federal or state court. The case was also referred to as a joint trial, meaning that all five of the accused will be tried together, unless the military judge later determines that any or all of the accused should be tried separately.”

    A Pentagon-paid defense lawyer for Ali, accused of wiring money to the 9/11 hijackers, has argued his client should not face a capital trial because he isn’t alleged to have killed anyone – or plotted to kill.

    “Mr. Ali would not be eligible for the death penalty if this case were tried in federal court,” said attorney James Connell. “This attempt to expand the reach of the death penalty to people who neither killed nor planned to kill is another example of the second-class justice of the military commissions.”

    Martins has assigned himself to the 11-lawyer prosecution team, which includes Justice Department lawyers Joanna Baltes, Jeffrey Groharing and Clayton Trivett as deputy trial counsels to Ryan and Swann. Trivett, a lieutenant commander in the Navy Reserves, and Groharing, a lieutenant colonel in the Marines, had also worked on the 9/11 prosecution during the Bush years.
    No One Knows Everything. Only Together May We Find The Truth JG


  3. #123
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    US sets charges for 9/11 mastermind, four others

    http://www.google.com/hostednews/afp...37ad97710d.101

    By Dan De Luce (AFP) – 6 hours ago

    WASHINGTON — The United States Wednesday unveiled charges against the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four other alleged plotters, vowing to seek the death penalty in a long-delayed military trial.

    Mohammed and the other accused conspirators have been held for years at the US-run prison in Guantanamo Bay, Cuba, amid a legal and political battle over how and where to prosecute them.

    "The charges allege that the five accused are responsible for the planning and execution of the attacks of Sept. 11, 2001, in New York and Washington DC, and Shanksville, Pa., resulting in the killing of 2,976 people," the Defense Department said in a statement.

    If convicted before a military tribunal, "the five accused could be sentenced to death," it said.

    After more than 10 years since the attacks that jolted the American psyche, "it is important to see that justice is done," said White House spokesman Jay Carney.

    He also said that President Barack Obama was still committed to making good on his promise to close the prison at Guantanamo, a pledge he had to back away from after legal setbacks and stiff opposition in Congress.

    The 46-year-old Mohammed, along with Walid bin Attash of Saudi Arabia, Yemen's Ramzi Binalshibh, Pakistan's Ali Abd al-Aziz Ali -- also known as Ammar al-Baluchi -- and Mustapha Ahmed al-Hawsawi of Saudi Arabia, are due to appear in court for arraignment proceedings within 30 days, the Pentagon said.

    The joint trial, which could be months away, will be held at the American naval base in Guantanamo Bay, where the US government has set up special military commissions to try terror suspects.

    Mohammed, whom US officials refer to simply as "KSM," has been at the center of a years-long debate over the legal fate of the accused plotters.

    After he was captured nine years ago, Mohammed was subject to harsh interrogations and repeated "waterboarding," a simulated drowning technique that has been widely condemned as torture.

    His treatment has raised questions whether his statements to interrogators will hold up in a trial, but testimony from a former aide may resolve that problem.

    His former deputy, Majid Khan, accepted a plea deal recently with US authorities that will require him to testify against the other suspects.

    After taking office in 2009, Obama initially sought to try Mohammed and the four others in a civilian court in New York, not far from the Ground Zero site where the World Trade Center's twin towers fell in 2001.

    But the proposal sparked criticism and Republicans in Congress put an end to those plans by blocking the transfer of terrorism suspects to the United States.

    Human rights groups have slammed the Guantanamo tribunals as tainted and renewed demands Wednesday that terror suspects be tried in a federal courts by civilian judges.

    "The Obama administration is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice," Anthony Romero, American Civil Liberties Union executive director, said in a statement.

    A lawyer for one of the accused said his client, Ali of Pakistan, would not be facing execution if he was being tried in a civilian court.

    "Because he did not kill or plan to kill, Mr. Ali would not be eligible for the death penalty if this case were tried in federal court," James Connell said in a statement.

    The military tribunals were created under George W. Bush's presidency after the 9/11 attacks, with officials arguing that Al-Qaeda militants fell into a special category that did not suit civilian courts.

    Procedures for the military tribunals, also known as commissions, have since been modified by the Obama administration to make them more closely resemble civilian courts.

    Mohammed and the other accused plotters were charged once before under the Bush era and, now that the system has been revised, had to be formally charged again to clear the way for a trial.

    The five are charged with terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, and destruction of property in violation of the law of war.
    No One Knows Everything. Only Together May We Find The Truth JG


  4. #124
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    9/11 Snitch Springs U.S. From Torture Trial Trap

    http://www.wired.com/dangerroom/2012...trial-torture/

    By Spencer Ackerman
    April 9, 2012 |

    Alleged 9/11 ringleader Khalid Shaikh Mohammed soon after his March 2003 capture in Pakistan. Photo: Wikimedia

    The CIA tortured Khalid Shaikh Mohammed and his fellow alleged 9/11 conspirators, a decision that, for years, jeopardized any prosecution for the deadly terror attacks. But when admitted al-Qaida member Majid Khan accepted a plea bargain at Guantanamo Bay, it practically paved the way for Wednesday’s announcement of a 9/11 trial. Months from now, Khan will take the stand against “KSM” and his co-defendants — and significantly minimize, if not eliminate, the amount of evidence presented in the trial that the government obtained through cruel, inhuman or degrading measures.

    According to experts in national security law, it’s a tremendous win for the government. But it comes with a price. Alongside a criminal inquiry into CIA torture that concluded without recommending prosecutions, a 9/11 trial unblemished by torture will mean the U.S. government will face no consequences for employing techniques long repudiated by the civilized world.

    It’s largely thanks to Brig. Gen. Mark Martins that there’s even a military commission for the 9/11 defendants at all. Martins, a former official at the Bagram airfield prison in Afghanistan, is the new chief prosecutor for the commissions. Unlike his predecessors, Martins approached his defendants like a criminal prosecutor: he prioritized among them, and offered deals to the smaller fish in exchange for their testimony against the larger ones.

    There is no larger fish at Guantanamo Bay than KSM, the architect of the 9/11 plot. And in late February, Martins effectively announced had a viable path to prosecuting KSM: Majid Khan, a Baltimore-educated former associate of KSM also detained at Guantanamo, had agreed to a 19-year prison deal in exchange for testimony against the 9/11 conspirators. Barely a month later, the military announced it would soon put KSM and the other conspirators on trial at Guantanamo.

    The two developments are intimately related. “If they have Khan and he can present on the stand under non-coercive circumstances evidence about 9/11 and evidence about the operational aspects of al-Qaida pursuant to 9/11, then the prosecution doesn’t think it has to introduce evidence gained through the torture of KSM, Ramzi bin al-Shibh and the others,” says Karen Greenberg, director of the Center on National Security at Fordham Law School. “Majid Khan’s testimony is not the result of torture. Therefore, you don’t need KSM’s confessions or anything that’s arguably compromised by torture.”

    Under the rules of the military commissions — which were written after 9/11 for terrorism trials and have been revised many times — evidence gained through torture is supposed to be inadmissible. KSM was waterboarded 183 times in the first month of his captivity. He and his fellow 9/11 conspirators were held by the CIA for years in secret prisons where the agency used interrogation techniques that included contorting detainees’ bodies in painful conditions, depriving them of sleep and sharply reducing their caloric intakes. Even though KSM confessed to playing a lead role in 9/11 years later, his confession may not be allowed to be used as evidence.

    By contrast, the rules of the commissions are congenial to Khan’s testimony. Khan was not party to the 9/11 plot. But military commissions allow greater flexibility to introduce hearsay evidence than civilian courts do.

    Much of the prosecutorial strategy depends on how much leeway the military judge provides Martins to use Khan. Khan is not believed to have first-hand knowledge of the 9/11 plot, and interacted with KSM in 2002 about an alleged follow-on attack. But he is believed to have learned much about the plot through KSM. “I dont think he’s a slam dunk,” says Andrea Prasow, the chief terrorism researcher for Human Rights Watch, “but I absolutely believe the plea bargain is a huge win for the government for keeping torture out of the public view.”

    Additionally, Khan won’t be sentenced for four years. That means the structure of the deal Martins made with Khan is effectively contingent on how Khan performs on the stand against KSM. “The incentives for Khan are so huge,” Greenberg observes. “There’s no deal until Khan testifies. It all happens in four years. It hangs over his head.”

    Before Khan testifies, the military commissions will work out the parameters of his testimony — especially what’s admissible. Pre-trial hearings will begin at Guantanamo by early May at the latest. There, lawyers for the 9/11 defendants will file motions arguing for the inadmissibility of various pieces of evidence, surely to include Khan’s hearsay. These pre-trial hearings typically take months.

    Even if the military judge assigned to the 9/11 trial permits the vast majority of Khan’s testimony, the 9/11 lawyers will still endeavor to make the torture of their clients an issue at the trial. The problem, Greenberg says, is that the deck is stacked against them, institutionally.

    “Unless the Convening Authority [who runs the commissions] says we won’t allow word torture, the defense will find a way to get it in,” she says. “But the military commission rules give the Convening Authority a lot of leeway to introduce and exclude evidence. Even if he does exclude evidence gained through torture, the fact that the jury is picked by the judge and the commissions’ office of defense works within the prosecutor’s office with half the resources provide ways of stacking the system.”

    All that points to an underwhelming conclusion to the bitter, ten-year controversy over torture in the 9/11 Era. Last year, the Justice Department concluded an inquiry into CIA torture without recommending prosecutions in 99 out of 101 cases. If the 9/11 trial proceeds with torture as an afterthought, then the government will have faced no hinderance, consequence or reprisal from the use of a practice most of the world considers barbarous and illegal.

    “There hasn’t been a public accounting for torture. There hasn’t been a detailed analysis about what happened and who’s responsible,” says Prasow. “If you don’t know what happened, you can’t make sure it never happens again.”
    No One Knows Everything. Only Together May We Find The Truth JG


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    Alleged 9/11 conspirators to be arraigned May 5 in GuantĂĄnamo

    http://www.miamiherald.com/2012/04/1...ors-to-be.html

    By Carol Rosenberg
    crosenberg@miamiherald.com
    Posted on Tuesday, 04.10.12

    ANDREWS AIR FORCE BASE, Md -- The chief war court judge, Army Col. James Pohl, has assigned himself to preside at the death-penalty trial of the five men accused of plotting the Sept. 11 attacks and has set a provisional arraignment date for May 5 at GuantĂĄnamo, The Miami Herald has learned.

    The rare Saturday hearing would meet a 30-day speedy trial clock deadline under the Military Commissions Act but could be changed if defense lawyers seek a delay.

    The war court appearances of alleged mastermind Khalid Sheik Mohammed and four accused co-conspirators would also come within days of the first anniversary of the U.S. Special Forces raid that killed Osama Bin Laden.

    Two war court sources, who spoke on condition of anonymity because the judge’s orders have not yet been made public, said Pohl detailed himself to the case Monday. He set the date in a second order the same day.

    Pohl is currently the only military judge hearing cases at the Guantánamo war court. He’s at the base in southeast Cuba this week to hear pre-trial arguments in the case of accused USS Cole bomber Abd al Rahim al Nashiri, also facing possible military execution if convicted.

    It was not immediately known if Pohl would keep the Cole case or hand it off to another military judge.
    No One Knows Everything. Only Together May We Find The Truth JG


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    Court Date Set for Accused 9/11 Plotters

    http://www.voanews.com/english/news/...146845685.html

    4/10/2012

    The chief war court judge at the U.S. Guantanamo Bay naval base has set May 5 as the date for the arraignment of five men accused of plotting the September 11, 2001 attacks on the United States that killed nearly 3,000 people.

    The Pentagon said Tuesday that military judge James Pohl set the rare Saturday morning court date to formally accuse the five suspected al-Qaida militants of participation in the 9/11 plot. The defendants' lawyers could ask for a delay.

    The defendants include the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four other alleged co-conspirators.

    They are accused of terrorism, hijacking aircraft, conspiracy, murder and other charges. If found guilty, they could face the death penalty.

    The U.S. military last week formally ordered a military tribunal for the five suspects.

    The Pentagon says in addition to their defense counsel, it has provided the five with attorneys with specialized knowledge and experience in death penalty cases in order to assist their defense.

    But human rights groups have slammed the use of military tribunals as opposed to civilian courts. President Barack Obama initially had pledged to try the accused in a civilian court, but he reversed course last year after U.S. lawmakers passed restrictions prohibiting the transfer of terror detainees to the United States.

    In 2008, Khalid Sheikh Mohammed said he wanted to plead guilty to all charges against him.
    No One Knows Everything. Only Together May We Find The Truth JG


  7. #127
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    Accused 9/11 mastermind Khalid Sheikh Mohammed and four accomplices will go to GITMO court May 5, face death for killing 2,976
    KSM’s new arraignment comes over a decade since 9/11, and nine years after his capture in Pakistan

    http://www.nydailynews.com/new-york/...icle-1.1059268

    4/10/2012

    WASHINGTON - Al Qaeda big Khalid Sheikh Mohammed and four others will face a military court May 5 on death-penalty charges for killing 2,976 on 9/11, the Pentagon said Tuesday.

    Meanwhile European officials ruled that Britain can hand over one-eyed, hook-handed terrorist Abu Hamsa al-Masri to the U.S. plus four more suspects wanted here - two in the 1998 African embassy bombings that killed 224 people.

    KSM’s new arraignment comes over a decade since 9/11, and nine years after his capture in Pakistan.

    The Kuwaiti last appeared in a Guantanamo Bay Court nearly four years ago, expressing the defendants' wishes to plead guilty on all counts.

    Soon thereafter, a newly-elected President Obama scrapped Guantanamo proceedings in favor of a civilian criminal trial in Manhattan federal court.

    Pushback from Congress, however, forced a return to the secluded Navy base in Cuba, where the Department of Defense re-charged the five on April 4.

    They will be tried together, but arguments may not start for months.

    Yemeni 9/11 co-defendant Walid Muhammad Salih Mubarak Bin 'Attash allegedly helped mastermind the 2000 bombing of the USS Cole and trained 9/11 hijackers.

    Fellow Yemeni Ramzi Binalshibh sought entry to the U.S. to study aviation, and is therefore suspected of being a potential hijacker. He was denied a visa and wired money to the attackers instead.

    Saudi defendant Mustafa Ahmed Adam al Hawsawi allegedly helped hijackers gain entry to the U.S. and then funneled them money, while Pakistani Ali Abdul Aziz Ali paid for flight training, wired the hijackers money and provided other support.

    Al-Masri - aka Mustafa Kamel Mustafa - has been jailed in the UK since 2004 for inciting murder in the name of radical Islam. He's wanted here for trying to set up a terror training camp in Oregon around 2000.

    In exchange for the extraditions, the U.S. will not subject any of the British prisoners to the death sentence.

    The European Court of Human Rights ruled Tuesday that life sentences in a U.S. super-maximum security federal prison like Florence ADX in Colorado would not violate EU rules.

    Supermax houses the nation's most notorious terrorists, spies and gangsters, among them Unabomber Ted Kaczynski, FBI snoop Robert Hanssen, and former acting Bonanno crime family boss Vincent Basciano.

    Florence inmates spend 23 hours a day in solitary confinement in cells with concrete furniture with tiny windows, denied outside communication.

    The EU court said the five "should not be extradited" until its judgment becomes final - a move that could take months - or until a possible appeals process ends.

    British prisoner Khalid al-Fawwaz, a Saudi citizen, and Adel Abdul Bary, an Egyptian, are wanted over the 1998 bombings of U.S. embassies in Kenya and Tanzania.

    Syed Talha Ahsan has been charged with conspiring to support terrorists via the Internet, while Babar Ahmad is accused of running websites to raise money, appeal for fighters and provide equipment - like gas masks and night vision goggles - for terrorists.

    Conflicting reports have al-Masri losing his hand and eye either diving on a landmine in Afghanistan or bungling an attempt to build a bomb.
    No One Knows Everything. Only Together May We Find The Truth JG


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    Absurd lengths
    OUR OPINION: It’s ridiculous for Pentagon to try to shield testimony at Guantánamo that’s already in public domain

    http://www.miamiherald.com/2012/04/0...d-lengths.html

    By The Miami Herald Editorial
    HeraldEd@MiamiHerald.com

    The Pentagon has long claimed that it can infringe on the public’s right to know what takes place at the island prison in Guantánamo Bay, Cuba, under the guise of protecting national security. Now it’s going to absurd lengths to justify a secret hearing involving a Saudi captive’s account of how CIA agents interrogated him while shackled in custody.

    The government has played the national security card repeatedly for more than 10 years, relying on post-9/11 paranoia and fear of terrorism to win public support for the kind of odious policies that have no place in a democracy. Secret interrogations, secret custody, secret jails. Even the Red Cross was kept in the dark at one time about who was in captivity, and where — a violation of fundamental Geneva Conventions rules. Basic rights of fair trial have been denied. We as a nation used to condemn the Soviet Union for these sorts of practices, and still condemn Cuba and other dictatorships for violating commonly recognized standards of justice. Yet it happens at Guantánamo.

    Thanks to the public outcry and persistent challenges by civil liberties advocates and some news organizations, progress has been made on a few fronts. The secret overseas jails are gone, or so the government has said, and reporters have gained limited access at GuantĂĄnamo. But old habits die hard and the Pentagon is at it once again at the upcoming hearing for Abd al Rahim al Nashiri.

    Nashiri is accused of orchestrating al Qaida’s suicide bombing of a U.S. Navy warship, the USS Cole, off Yemen in October 2000. Seventeen U.S. sailors were killed in the attack, and the Pentagon war court prosecutor is pursuing this case as its first death-penalty trial. In a bid to win a court order that he be unshackled during prison camp meetings with his attorneys, defense lawyers want to call him as a witness to describe the trauma of his CIA interrogations.

    To be clear, the issue is not whether he should be shackled during his trial, but rather when meeting with his own attorneys. That’s what a hearing scheduled for this week is about, but Col. James L. Pohl, a military judge, has ordered a blanket closure of the entire hearing because it touches on what lawyers claim is his treatment under interrogation prior to incarceration at Guantánamo.

    The Miami Herald and a wide range of news organizations, including Fox News and The Washington Post, have rightly objected. In the first place, there’s that pesky thing called the First Amendment that protects public access to the proceedings, particularly in a case that commands worldwide attention and raises significant issues.

    Beyond that, it’s ridiculous to shield the public from testimony covering information already in the public domain. Declassified abuse investigations show that, while Nashiri was shackled, CIA agents waterboarded him, racked a semi-automatic handgun near his head and used a power drill to frighten him in 2002 and 2003.

    What’s left to hide? The list of published accounts detailing Nashiri’s detention with the CIA covers five pages of a pleading submitted by defense attorneys to the court. The filing also points out that the court’s own media rules explicitly forbid exclusion of information that has already been publicly disclosed.

    Besides, if any information that remains classified should emerge, it can easily be kept from reporters, who sit in a separate, soundproof room and hear information only after a 40-second delay. Just hitting a button can keep the secret material from being heard by reporters. The court’s own guidelines require using the least intrusive rules to keep information secret, which would seem to rule out a blanket closure.

    There’s no legitimate reason to keep these proceedings a secret.
    No One Knows Everything. Only Together May We Find The Truth JG


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    Reporting from GuantĂĄnamo: Leaving the Constitution on the Mainland

    http://www.aclu.org/blog/national-se...ution-mainland

    Posted by Anna Arceneaux, Capital Punishment Project at 4:15pm

    This week I am in GuantĂĄnamo Bay observing a hearing in the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri), the first death penalty case to be tried by military commission. Mr. al-Nashiri faces charges for his alleged participation in the attack on the destroyer USS Cole over 11 years ago. Apprehended in 2002, he was held by the CIA for four years in secret before his transfer to military custody. U.S. officials brutally tortured Mr. al-Nashiri: he was waterboarded, and threatened with a power drill and handgun next to his head. Sadly, this week's pretrial hearing in his case continues to erode the commission's purported commitment to fairness, transparency, and justice and instead affirms a commitment to GuantĂĄnamo's shameful legacy of injustice.

    Yesterday, Mr. al-Nashiri's defense team argued motions challenging the jurisdiction of the military commissions and the constitutionality of the Military Commissions Act of 2009 that created this iteration of them. Among the challenges: the act singles out noncitizens for prosecution, which is a violation of the Equal Protection Clause. An American citizen who committed the very same or even worse crimes violating the law of war or threatening national security would be tried in federal court. Chief Prosecutor for the military commissions Brig. Gen. Mark Martins circularly maintained that trial in a military commission was appropriate despite this inequality because of the acts al-Nashiri has committed. Nevermind the presumption of innocence.

    Judge James Pohl asked the government whether constitutional rights even applied to Mr. Al-Nashiri and other GuantĂĄnamo detainees. Gen. Martins said, unequivocally, "no." His answer, reiterated several times, that Mr. al-Nashiri was not entitled to constitutional protections seemed to confirm that the commissions are set up not for fairness but to guarantee convictions through looser substantive and procedural rules than the Constitution requires.

    Mr. al-Nashiri is not the first to be tried in this latest iteration of military commissions, but he is the first defendant in this new version of commissions against whom the government is seeking the death penalty. (There were six capital trials pending in 2008 when President Obama was elected: Mr. Al-Nahshiri and the five 9/11 defendants. Those cases were put on hold and ultimately dismissed after his inauguration, but like Mr. al-Nashiri, the 9/11 defendants have now been charged once more. They will be arraigned on May 5.)

    Federal constitutional law has long recognized that death penalty cases are different. When the government seeks the ultimate punishment against a criminal defendant, a court must take extraordinary protections to guard against error. As a staff attorney with the ACLU's Capital Punishment Project, I represent defendants charged with serious, tragic crimes and facing the death penalty in courts across the country. I am no stranger to challenging courtroom environments and public hostility towards my clients. But when I walk into a courtroom, I know that if nothing else, I am armed with the Constitution. The Constitution guarantees that my clients have the right to due process, to be tried by an impartial jury, to confront the witnesses against them, to a speedy trial, and to a reliable capital sentencing proceeding. Most importantly in the case of indigent clients – the only ones the ACLU's CPP represents – defendants are entitled to be equipped with the resources necessary to defend against a death sentence, and to ask for those resources in an ex parte proceeding (in other words, without the prosecution present), so as not to tip off the prosecution about defense strategy. If these rights are not honored at the trial court, I know that my client will be able to challenge constitutional errors on appeal. At the military commission, we seem to have left the Constitution on the mainland.

    This week's hearing was also expected to test the circumstances under which military commissions will be held in closed session. Of course, already the sessions are far from open. The few observers granted permission by the government to attend the proceedings in GuantĂĄnamo view the courtroom from an adjacent room through soundproof glass. We hear the proceedings via an audio feed with a 40-second delay. The government has deemed any utterance from a defendant presumptively classified, in order to censor damning evidence of torture and brutal interrogation methods. In fact, "classified" has been specifically defined to include any words about past torture or present conditions of confinement at GuantĂĄnamo. So, if evidence the government wants to keep from the public comes up, a red light goes off and suspends the audio feed for the observers. This is despite the fact that information about torture in CIA custody is already public, and techniques like waterboarding have been admitted by the government.

    Mr. al-Nashiri was set to testify yesterday in support of a defense motion challenging his shackling during legal visits. The motion argued that shackling Mr. al-Nashiri during these meetings retraumatizes him, reminding him of the torture he endured at the hands of the CIA. Retraumatization prevents effective attorney-client communication – a critical factor in any case, but even more so in when someone is facing the death penalty, where defense lawyers must ask about sensitive and highly personal evidence that is essential to their representation of a client and may save the client's life.

    In anticipation of Mr. al-Nashiri's testimony, the judge heard arguments from counsel about the procedure for closing the courtroom, and in a first for a military commission, the judge allowed a lawyer present on behalf of 10 media companies to argue for openness in the proceedings. Ultimately, the judge dodged the issue by ruling that Mr. al-Nashiri should not be shackled when he meets with his legal team. But the issue of open hearings regarding torture and abuse will undoubtedly surface again soon, in Mr. al-Nashiri's case or in the upcoming military commission proceedings against the five alleged 9/11 perpetrators, over which Judge Pohl will also preside. Torture and abuse should not be covered up, and an important test of these commissions' transparency and fairness will be whether the government is able to censor and keep from the public the torture to which the 9/11 defendants were subjected.

    The government is risking the integrity of the possible convictions and death sentences against Mr. al-Nashiri and the five men accused of participating in the 9/11 attacks with this untested and unfair system of justice, where the Constitution may not apply and where the proceedings may be conducted in secret. Our federal courts are well-equipped to handle these cases: the federal government has successfully prosecuted hundreds of terrorism cases in federal court since 9/11, without having to decide novel legal issues at every step and without abandoning the Constitution. In GuantĂĄnamo, we are using a second-class system of justice for the most important capital trials in our country's history. Already we are alone among Western nations in our heavy use of capital punishment. Must we also leave our Constitution behind?
    No One Knows Everything. Only Together May We Find The Truth JG


  10. #130
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    Guantanamo Judge Avoids Ruling On ‘Torture’ Testimony

    http://tpmmuckraker.talkingpointsmem...on_torture.php

    Ryan J. Reilly April 11, 2012, 7:57 PM

    GUANTANAMO BAY, CUBA — Abd al-Rahim al-Nashiri was tortured by the United States of America. His lawyers say so. The U.S. government has said so. But whether or not members of the press and the public could hear him testify about his torture — from an adjacent room through three panes of glass — and listen — on a 45-second delay — was a matter of debate at Guantanamo Bay’s Camp Justice facility on Wednesday.

    Al-Nashiri — the man the government alleges planned the attack on the USS Cole that killed 17 sailors and injured dozens in October 2000 — walked into a white-walled courtroom surrounded by several layers of barbed wire fences for the first day of pre-trial hearings on the legitimacy and logistics of his military commission trial. The administration announced they would restart military commissions last March, and al-Nashiri’s case could be the first to head to trial later this year.

    The biggest open question ahead of Wednesday’s session was whether al-Nashiri — clean shaven and wearing all white — would get to testify about his torture in court, and whether that testimony could be made public. The answer? Not today.

    Judge Col. James L. Pohl avoiding ruling on the question of whether al-Nashiri would testify, instead making his testimony moot by ruling on behalf of his lawyer’s request to leave him unshackled when they meet with their client.

    The question of shackling is key because the 47-year-old Saudi’s defense attorneys say it reminds him of how he was constrained when being held in a CIA “black site.”

    As recounted in a 2004 CIA Inspector General report, a debriefer “entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head” and “entered the detainee’s cell and revved the drill while the detainee stood naked and hooded” shortly after al-Nashiri was first taken into custody in 2002. Al-Nashiri was transferred from an overseas CIA “black site” to the Guantanamo Bay facility in 2006.

    Lawyers for al-Nashiri wrote in a motion last month that they anticipated that it might be “necessary and appropriate for the accused to show counsel how events occurred.” They said they might take a “psychodramatic approach” to the testimony that would allow lawyers to “access the experiences of others — to see things as they saw them and to feel it as they felt it — in other words, to truly empathize.”

    The prospect of testimony from al-Nashiri — and the likelihood that such a hearing would be conducted in a closed session — is what led 10 media companies to send First Amendment lawyer David Schultz down to Guantanamo to argue for the court to be open during the testimony.

    This was Schultz’s first trip to Guantanamo and his testimony marked the first known time that a military commission has heard an argument from a non-party.

    “We did establish an important precedent — that the pubic and the press have the right to be heard,” Schultz told TPM after the hearing.

    Schultz mentioned publicly available information about the government’s treatment of al-Nashiri in court — the use of waterboarding, a drill and a gun — and said it would be “impossible” to reach a conclusion that national security concerns should prevent the public from hearing “information that the whole world knows or can find in two seconds on the Internet.”

    “You’re always going to have some people who think this thing is a sham,” Schultz told TPM. “But the general public can only have confidence in the judgments if the system itself is open.”

    The legitimacy of the forum itself was the subject of a separate series of arguments by al-Nashiri lawyer Michel Paradis.

    “The intent and purpose of the Military Commissions Act was to deny equal justice,” Paradis argued. He argued that the system of justice an individual is placed into — military or civilian — should not be decided “simply by accident of where they were born” and that Congress set up the military tribunal system for “political self interest and political self interest alone.”

    “Separate is not equal. We do not segregate in the United States anymore, we fought long and hard for that,” Paradis said. At one point, he argued that decisions about trying defendants in either military or civilian court would “at a certain point” become “outright forum shopping.”

    The prosecution argued that Congress had a “very rational and legitimate reason” for setting up two judicial systems.

    Judge Pohl seemed inclined to defer to previous decisions about the legitimacy of military tribunals made by higher courts. But Paradisl argued that the fact that the death penalty was in play in this case made it different from previous decisions.

    Preliminary hearings in the al-Nashiri case continue on Thursday, though it’s not clear if al-Nashiri will be in attendance.

    Defense lawyers asked the judge to order that Guantanamo officials don’t forcibly extract al-Nashiri from his cell if he indicates he doesn’t wish to attend.
    No One Knows Everything. Only Together May We Find The Truth JG


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