9/11 charges to test military legal system

WASHINGTON — The plan announced by the Pentagon on Monday to seek the death penalty against six suspects accused of planning and organizing the Sept. 11 attacks could be complicated by the recent acknowledgment that one of the men was the subject of waterboarding.

The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of crimes and include conspiracy, murder, attacks on civilians, terrorism and supporting terrorism.

All six suspects are at Guantánamo Bay, Cuba, and the military plans to try them together.

Monday's announcement takes the Pentagon, and the country, into largely uncharted legal territory. The procedures of the military commissions have been repeatedly challenged in court, with some success, and legal precedents that have been developed over decades or longer hold less sway than in the civilian criminal-justice system.

But the administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top terrorists.

"These charges allege a long-term, highly sophisticated, organized plan by al-Qaida to attack the United States of America," Brig. Gen. Thomas Hartmann, the legal adviser to the tribunal system, told a Pentagon news conference Monday.

Five other suspects

The other five men being charged are: Mohammed al-Qahtani, who officials have labeled the 20th hijacker; Ramzi Binalshibh, said to have been the main intermediary between the hijackers and al-Qaida leaders; Ali Abd al-Aziz Ali, known as Ammar al-Baluchi, a nephew and lieutenant of Khalid Sheikh Mohammed; al-Baluchi's assistant, Mustafa Ahmad al-Hawsawi; and Waleed bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the 19 hijackers.

As the commissions' procedures dictate, Judge Susan Crawford, the convening authority over the military tribunals, still needs to certify the charges against all six of the suspects as capital offenses to make them eligible for the death penalty if convicted.

The men would be tried in the military tribunal system set up by the administration shortly after Sept. 11. That system has been widely criticized for its rules on legal representation for suspects, hearings behind closed doors and past allegations of inmate abuse at Guantánamo.

Original rules allowed the military to exclude defendants from their own trials, permitted statements made under torture and forbade appeal to an independent court. But the U.S. Supreme Court struck down the system in 2006, and a revised plan set up after Congress enacted a new law has included some additional rights.

Since then, only four other defendants have been formally charged by the military commission.

Hartmann said Monday the defendants will get the same rights as U.S. soldiers tried under the military-justice system, including the right to remain silent, call witnesses and know the evidence against them. Appeals can go all the way to the Supreme Court.

Hartmann called the charges sworn Monday "only allegations" and said the accused will remain innocent until proven guilty.

The decision to seek the death penalty also is likely to draw international criticism. A number of countries, including U.S. allies, have said they would object to the use of capital punishment for their nationals at Guantánamo.

The U.S. unsuccessfully sought the death penalty in its only civilian trial of charges related to Sept. 11.

In that case, Zacarias Moussaoui, who was behind bars in Minnesota on Sept. 11, was sentenced to life in prison.

Kevin Lanigan, the director for the Human Rights First law and security program, said the prosecution of Khalid Sheikh Mohammed and the other suspects was long overdue, but the allegations of torture will complicate matters.

Last week, CIA Director Michael Hayden confirmed that Sheikh Mohammed, the purported mastermind of the attacks, was one of three terror suspects in CIA custody who had been subjected to the interrogation technique known as waterboarding.

Waterboarding makes a prisoner believe he is in imminent danger of drowning. The practice is prohibited by the Geneva Conventions and the U.S. Army Field Manual, and most of the international community considers the technique torture.

In addition, al-Qahtani, who Pentagon officials say was supposed to have been the 20th hijacker in the Sept. 11 attacks, has alleged he was tortured and last fall recanted a confession he said he made after he was abused by interrogators.

The Washington Post, however, reported Monday that the Bush administration decided to issue charges based partly on information the men disclosed to FBI and military questioners, who called themselves the "Clean Team," without the use of coercive interrogation tactics.

The admissions made by the men — who were given food whenever they were hungry as well as Starbucks coffee at the Defense Department's Guantánamo Bay prison — played a key role in the government's decision to proceed with the prosecutions, military and law enforcement officials said.

The "Clean Team's" goal was to collect virtually the same information the CIA had obtained from five of the six through duress at secret prisons.

The men were read rights similar to a standard U.S. Miranda warning, and officials designed the program to get to the information the CIA already had gleaned by waterboarding and other techniques such as sleep deprivation, forced standing and temperature extremes.

An unanswered question is whether the FBI and military interrogators could have extracted the same information without a road map from the CIA or whether the detainees would have responded to a friendly approach without first receiving more aggressive treatment.

Vincent Warren, executive director of the Center for Constitutional Rights, which represents one of the detainees charged and many more at Guantánamo, said the cases are "essentially show trials, as President Bush is leaving his tarnished legacy to the next president. They are being used to justify six years of lawlessness and barbarity this government has been doing."

White House spokeswoman Dana Perino said Bush played no role in deciding which detainees would be prosecuted, nor whether to pursue the death penalty.

While the trial will not be televised, journalists will be allowed to attend, and arrangements will be made to allow the family of the Sept. 11 victims to view recordings of the proceedings in private, Hartmann said.

"There will be no secret trials," Hartmann said. "We will make every effort to make everything open."

Victims' relatives react

Relatives of the victims welcomed the Pentagon's announcement, but some had mixed feelings about whether justice for their loved ones should include the death penalty.

" I know my son opposed the death penalty, so I oppose it," said Diane Horning, of Scotch Plains, N.J., president of World Trade Center Families for Proper Burial. Her son, Matthew, 26, died in the attacks.

Other relatives strongly believed those convicted should face death sentences.

"Our son received a death sentence on Sept. 11 for crimes he never committed," said Sally Regenhard, of the Bronx, whose son, Christian, a 28-year-old probationary firefighter, died in the attacks. "I think it's time for biblical justice."

Additional information from The Washington Post, The Associated Press and Newsday