Military Prosecutors Set To Open Major 9/11 Case

Defense stymied in 9/11 death-penalty case

http://www.miamiherald.com/news/breaking_news/story/431636.html

By CAROL ROSENBERG
[email protected]
Posted on Sun, Feb. 24, 2008

Two weeks after the Pentagon announced plans to stage death-penalty trials for six Guantánamo captives as alleged Sept. 11 co-conspirators, none of the men has seen a military defense lawyer.

Only one of the six has an assigned lawyer, U.S. Army Lt. Col. Bryan Broyles. But Broyles failed to see his client during a Feb. 13-16 visit to the isolated Navy base.

Lawyer visits will be a key precursor in the Pentagon's bid to put Khalid Sheik Mohammed and five other alleged 9/11 co-conspirators on trial. On Feb. 11, the Pentagon announced plans to simultaneously try the men by military commission -- and to seek to execute them if they are convicted.

But Army Reserves Col. Steve David said so far he had only assigned Broyles to the complex six-defendant case -- to defend Mohammed al Qahtani, a Saudi considered the least valuable captive among the six men.

Broyles blamed the prison camps lawyer, Navy Capt. Patrick McCarthy, for placing obstacles in the path of his bid to meet Qahtani in the company of a civilian lawyer, Wells Dixon, of the Center for Constitutional Rights.

The Army colonel told The Miami Herald he went to the base specifically to meet Qahtani and another Saudi war-court candidate, Ahmed al Darbi, with Dixon -- and was thwarted by the military, not the detainees, on both counts.

In a statement, the prison camps spokesman, Navy Cmdr. Rick Haupt, blamed the conflict on defense lawyers -- describing their failure to comply with prison camp bureaucracy and on scheduling conflicts. But, in the end, Haupt said, the bureaucracy issues were ''moot'' because Darbi and Qahtani refused to meet the military defense lawyer at their assigned time.

A core issue is Broyles' bid to have Dixon join the meetings with the men -- who claim brutal treatment in U.S. custody.

Absent an introduction by the civilian lawyer, Broyles said, the detainee might not believe he is there to help in his defense and instead suspect an interrogation trick.

Qahtani was once known as The 20th Hijacker, suspected of failing to join the 19 other suicide bombers in the 9/11 attacks because he was turned away from entry into the United States at an Orlando airport.

His case focused attention on the prison in June when Time magazine published excerpts from his interrogation log showing how they ratcheted up techniques on their captive during 50 days starting in November 2002 to extract a confession -- by using sleep deprivation, leaving him strapped to an intravenous drip without bathroom breaks and having him strip naked. Troops also told him to bark like a dog and left him to urinate on himself.

Darbi is accused of an unrealized plot to attack a boat in the Middle East. He is also the brother-in-law of a Sept. 11 hijacker who was aboard the 757 that struck the Pentagon, killing 187 people, including the wife of then U.S. Solicitor General Ted Olson.

Haupt said the prison camps legal staff ``does not try to persuade or dissuade a detainee with respect to meeting a lawyer. . . . Counsel is able to send letters to the detainee in an attempt to convince the detainee of the benefits of cooperating and working with counsel.''

By law, a Guantánamo captive may serve as his own defense attorney at the special war court set up by Congress and the Bush administration. But because they are prison-camp captives they can't interview prospective witnesses or travel to far-flung sites -- as the Pentagon lawyers have done.

Only one trial has actually been completed, with Australian David Hicks pleading guilty to being an al Qaeda foot soldier. His Pentagon lawyer, a Marine major, helped negotiate the plea by which Hicks was set free after a nine-month sentence, most of it served in Australia.

At earlier war-court efforts, an Army brigadier general who ran the prison camps actively encouraged another captive, Ghassan Sharbi, to meet with his attorney.

Sharbi said that Brig. Gen. Jay Hood visited him at his cell repeatedly, discouraged him from boycotting the process -- and arranged a rare telephone call home for the captive to consult his father in Saudi Arabia.

David -- the Pentagon's chief defense counsel and, in civilian life, an Indiana judge -- said he was trying to help resolve the stalemate between the prison camp and the defense lawyers.

''Why can't habeas counsel who jumps through the hoops and military counsel who jumps through the hoops -- and happen to be there at the same time -- meet with their client at the same time?'' asked David, who said he was unaware of any restrictions when he dispatched Broyles to meet with two war-court candidates after the big 9/11 case announcement.

Meantime, David said he still was seeking suitable, separate defense counsel for Qahtani's five co-defendants, an even more difficult task.

They are among 15 ''high-value detainees'' held in segregation at a long undisclosed site called Camp 7, away from Qahtani and the other 260 war-on-terrorism detainees.

The CIA held and interrogated the 15 for years in secret custody before they were sent to Guantánamo in September 2006. Since then, FBI investigators have been allowed to see them frequently, but none have seen defense lawyers.

Pentagon General Counsel Resigns

http://www.thenation.com/doc/20080310/tuttle2

Ross Tuttle
2/27/2008

William J. Haynes, the Pentagon's chief legal officer and overseer of Guantanamo's Military Commissions, is stepping down, amid mounting controversy over the tribunal process, so he can "return to private life," the Department of Defense announced late on Monday. Haynes' resignation comes exactly two weeks after landmark charges were brought against six "high-value" Guantanamo detainees.

Haynes "has served the Department of Defense and the nation with distinction," Defense Secretary Robert Gates said in a statement. But Haynes will leave behind a commissions process that is embattled and discredited--and he bears much of the blame.

Haynes, who is legal counsel for the Pentagon--having served both Donald Rumsfeld and Robert Gates--has long been criticized for his role in crafting the Bush Administration's policies regarding the interrogation and detention of prisoners captured in the "war on terror."

His infamous memos and public statements advocated torture and the denial of habeas corpus for detainees. In a 2002 memo, he recommended techniques such as "twenty-hour interrogations, isolation for up to thirty days, deprivation of light and auditory stimuli...and stress positions such as the proposed standing for four hours." In response to this last technique, Haynes's boss at the time, then-Secretary of Defense Donald Rumsfeld, wrote in the memo's margins, "I stand 8-10 hours a day. Why is standing limited to 4 hours." Haynes also wanted to keep death threats, waterboarding and exposure to extreme temperatures on the table as interrogation methods. He stated, "Fact: The detainees currently held at Guantanamo Bay, Cuba, are not protected by the Geneva Conventions."

These positions and actions have led to international condemnation and a stalemate in the prosecution of Guantánamo detainees. Only one case--that of Australian David Hicks--has been adjudicated in six years.

Criticism of Haynes has sharpened in the wake of the October resignation of the Chief Prosecutor of Guantánamo's military commissions, Col. Morris Davis, who charged that Haynes and other political appointees were interfering unlawfully in the process. Davis resigned when Haynes was inserted above him in the chain of command, saying, "Everyone has opinions, but when he was put above me, his opinions become orders." In a Washington Post op-ed last year, Davis wrote that he had felt pressure to prosecute cases deemed "sexy" in the run-up to the 2008 elections.

And just last week, Col. Davis made the startling claim, in an exclusive interview with The Nation, that Haynes, who oversees both the prosecution and defense, said to him, "We can't have acquittals, we have to have convictions." According to Davis, Haynes said, "if we've been holding these people for so long, how can we explain letting them get off?"

Reached for comment about Haynes resignation, Col. Davis, who believes that given proper supervision the commissions can be successful, says he's not celebrating yet. "It's a positive step, but there are still several people who share his [Haynes's] views that are still standing in the way of the process," he said, referring to convening authority Susan Crawford and her legal adviser Brig. Gen. Thomas Hartmann.

Davis has been troubled by the extent of Hartmann's interference in the prosecution, believing that the prosecutor's office needs to be independent in order to perform its duties and that the convening authority should be neutral. However, Hartmann, who reports to Haynes, interpreted his duties more broadly, and according to an internal report he "sees the Legal Adviser's role as being the supervisor of the Chief Prosecutor."

Lt. Brian Mizer, defense counsel for Salim Hamdan, alleged driver of Osama bin Laden, had a similar reaction to Haynes's resignation. "It's an important step in the process in bringing credibility to the military commissions, but it's going to be insufficient to remove the unlawful influence that Col. Davis has talked about," said Mizer from his Virginia-based office.

But Mizer is less optimistic about the prospects for a just process in general: "It will never make this system of justice acceptable. We've removed fundamental rights that our country was based upon--the right to confront accusers, the right to remain silent, and no amount of resignations are going to cure those aspects of the Military Commissions Act," he said--referring to the controversial 2006 act of Congress that created the framework for the current commissions system.

The Pentagon's brief statement left open room for speculation about the reasons for Haynes's departure.

Col. Davis, who was surprised that such an announcement would come so late in the Administration's second term, suggested that "there may have been some opportunity that was just too good to pass up." After the circulation of the press release, it was reported that Haynes will be going to an in-house position at a major corporation.)

As far as Haynes's future is concerned, there is a possibility that he could be pursued as a perpetrator of war crimes in a foreign country. Indeed, Haynes, along with Rumsfeld, Alberto Gonzales and other Bush Administration appointees, were charged in Germany in 2006 with war crimes, but the charges were withdrawn due to insufficient evidence.

As the tribunals march on, Col. Davis has recently agreed to testify at a pretrial hearing in April for Lt. Commander Mizer's client Salim Hamdan. Mizer will raise a motion to dismiss charges based on unlawful interference by political appointees, and Davis will be one of his witnesses. He will reiterate claims he made publicly about Crawford's and Hartmann's roles in the prosecution.

As Davis puts it, "the house isn't clean yet."

Don't execute 9/11 accused: Mukasey

http://www.reuters.com/article/domesticNews/idUSL1435858520080314

By Chloe Fussell
Fri Mar 14, 2008 1:23pm EDT

LONDON (Reuters) - U.S. Attorney General Michael Mukasey said on Friday he hoped the six Guantanamo prisoners charged with the September 11 attacks on New York and Washington would not receive the death penalty.

Speaking at the London School of Economics, Mukasey said the death penalty would allow the six, including the self-confessed commander of al Qaeda's foreign military operations, to portray themselves as victims.

"I hope they don't get the death penalty -- they would see themselves as martyrs," Mukasey said in response to questions at a talk on Anglo-American law enforcement.

If convicted, military prosecutors would seek to execute the men, who are being held at the Guantanamo Bay detention centre.

Charges are now pending against 13 of the centre's 275 prisoners, as the Pentagon is trying to move the Guantanamo trials along before the end of the Bush administration.

Human rights groups call the proceedings a farce, as detainees do not have legal rights normally accorded to U.S. citizens and prisoners of war.

Pakistani Khalid Sheikh Mohammed and five others are charged with crimes including murder, conspiracy and terrorism for the attacks which killed around 3,000 people in 2001.

But the head of the Department of Justice said if the men were to receive the death penalty, it would at least be a fitting punishment.

"If those are not poster children for the death penalty, I don't know what is," Mukasey said.

Lawyer: Gitmo trials pegged to '08 campaign

http://www.miamiherald.com/guantanamo/story/474196.html

BY CAROL ROSENBERG
[email protected]
Posted on Fri, Mar. 28, 2008

The Navy lawyer for Osama bin Laden's driver argues in a Guantánamo military commissions motion that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 campaign.

The Pentagon declined late Friday to address the defense lawyer's allegations, noting that the matter is under litigation.

The brief filed Thursday by Navy Lt. Cmdr. Brian Mizer directly challenged the integrity of President Bush's war court.

Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy Defense Secretary Gordon England, a veteran White House appointee, asked lawyers to consider Sept. 11, 2001, prosecutions in light of the campaign.

''We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,'' England is quoted as saying.

A senior Pentagon spokesman, Bryan Whitman, declined to address the specifics, saying ``the trial process will surface the facts in this case.''

''It has always been everybody's desire to move as swiftly and deliberately as possible to conduct military commissions,'' he added. ``But I can tell you emphatically that leadership has always been extraordinarily careful to guard against any unlawful command influence.''

The brief quotes England as a stipulation of fact and cites other examples of alleged political interference, which Mizer argues makes it impossible for Salim Hamdan, 37, to have a fair trial.

It asks the judge, Navy Capt. Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration leadership exercises ``unlawful command influence.''

Allred has set hearings at Guantánamo for April 30.

Hamdan is the former Afghanistan driver of al Qaeda leader Osama bin Laden whose lawyers challenged an earlier war court format to the U.S. Supreme Court, which struck down the war court as unconstitutional.

Pentagon prosecutors call him a war criminal for driving bin Laden in Afghanistan before and during the 9/11 attacks and allegedly working as his sometimes bodyguard. Even if he didn't help plot the suicide attacks, they argue, he is an al Qaeda co-conspirator.

As described the Hamdan brief, the England meeting came three weeks after President Bush disclosed in a live address that he had ordered the CIA to transfer ''high-value detainees'' from years of secret custody to Guantánamo for trial.

Bush also disclosed that the CIA used ''an alternative set of procedures'' to interrogate the men into confessing -- since revealed by the CIA director, Air Force Gen. Michael V. Hayden, to include waterboarding.

They included reputed 9/11 mastermind Khalid Sheik Mohammed and four other men against whom the Pentagon prosecutor swore out death-penalty charges in a complex Sept. 11, 2001, conspiracy case on Feb. 11.

The proposed 90-page charge sheets list the names of 2,973 victims of the 9/11 attacks. The men have not been formally charged. Instead they are in the control of a White House appointee, Susan J. Crawford, whose title is the war court's convening authority, and her legal advisor, Brig. Gen. Thomas Hartmann.

Under the law governing the commissions, the alleged 9/11 conspirators would formally be charged 30 days after Crawford approves them.

That currently leaves a seven-month window during the 2008 election campaign.

An expert on military justice, attorney Eugene Fidell, said the Hamdan motion brings into sharp relief the problem of Pentagon appointees' supervisory relationship to the war court.

''It scrambles relationships that ought to be kept clear,'' said Fidell, president of the National Institute of Military Justice.

The quote attributed to England is ``enough that you'd want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.''

England is a two-term White House appointee. He joined the Bush administration in 2001 as Navy secretary, briefly served as deputy Homeland Security secretary and then returned to the Pentagon, where he supervised the prison camps' administrative processes.

Crawford was a Republican attorney appointee in the Pentagon when Vice President Dick Cheney was defense secretary.

Hamdan's military lawyer argues that standard military justice has barriers that separate various functions, which he contends Pentagon appointees have crossed in the war court.

In April the defense team plans to call the former chief prosecutor, Air Force Col. Morris Davis, who recounted the England remark since submitting his resignation, claiming political interference.

Davis, who had approved charges against Hamdan, served as former chief Pentagon prosecutor until he resigned over what he called political interference by general counsel William J. Haynes.

Haynes has since quit.

They also want to call as a witness the deputy chief defense counsel, a retired Army lawyer named Michael Berrigan, who, according to the filing, was mistakingly sent a draft copy of 9/11 conspiracy charges being prepared by the prosecution.

In the filing, Hartmann, the legal advisor, orders Berrigan to return it, which the defense team claims illustrates the muddied role of the legal advisor.

He supervised the prosecution, announced the 9/11 conspiracy charges on Feb. 11, then said he would evaluate them independently and recommend to Crawford how to proceed.

The Mizer motion is also the latest attack on the legitimacy of war-court prosecutions by a variety of feisty uniformed defense attorneys, who have doggedly used civilian courts and courted public opinion against the process since the earliest days.

Mizer sent the brief directly to reporters for major news organizations, rather than leave it to the Office of Military Commissions to post it on a Pentagon website.

The Pentagon has been releasing motions for the public to read after they have been argued -- and ruled on by the judge.

With delays in other cases, the Hamdan case is now on track to be the first full-blown U.S. war-crimes tribunal since World War II.

The current time frame would put the trial before the Supreme Court rules on an overarching detainee rights case in June.

U.S. Navy lawyer to defend alleged 9/11 mastermind

http://news.yahoo.com/s/nm/20080409/ts_nm/guantanamo_lawyer_dc

By Jane Sutton Tue Apr 8, 11:02 PM ET

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The self-described mastermind of the September 11 attacks on New York City and the Pentagon has been assigned a U.S. military lawyer to defend him in the Guantanamo war court, where he could face execution if convicted, The Miami Herald reported.

Navy Capt. Prescott Prince was given orders on Tuesday to defend Pakistani prisoner Khalid Sheikh Mohammed, the newspaper said on its Web site.

Military officials at Guantanamo and at the Pentagon could not immediately confirm the report. However, they previously had said Prince had joined the team of military lawyers who defend foreign captives facing war crimes charges in the U.S. military tribunals at the Guantanamo Bay naval base in Cuba.

Prince, 53, is an attorney and naval reservist from Richmond, Virginia. He recently served in Iraq, where he was a lawyer in the unit that oversaw detainee operations.

Mohammed, better known by his initials KSM, has said he planned every aspect of the September 11 attacks using hijacked airliners in 2001.

In February, U.S. military prosecutors charged him and five other Guantanamo captives with counts that include murder, conspiring with al Qaeda and terrorism. The charges list the names of 2,973 people killed when four hijacked passenger planes slammed into New York's World Trade Center, the Pentagon and a field in Pennsylvania.

Before Mohammed and the others can be tried, the charges and the potential death penalty still must be approved by a Pentagon official overseeing the Guantanamo war court, the first U.S. military tribunals since World War Two.

Under the rules for the Guantanamo court, military lawyers are ordered to put on a "zealous" defense for the accused. But defendants can reject the lawyers and act as their own attorneys.

"This man is alleged to have done some very bad things. Personally I have faith in the American people to allow him to have a fair trial," Prince told the Herald.

But he said he did not feel a fair trial was possible in the Guantanamo court system designed to try foreign captives outside the regular U.S. civilian and military courts.

Mohammed's confession could be troublesome for the U.S. government if used as evidence because the CIA has admitted it subjected him to "waterboarding" -- an interrogation technique of simulated drowning that has been widely criticized as torture.

The rules of the court prohibit the use of evidence gained through torture, as does an international treaty the United States has signed. But it is left up to the trial judge to determine what evidence can be introduced.

"You start with the fact that you've broken the rules -- a secret prison, torturing. Waterboarding. Harsh extreme techniques. Using cruel, coercive techniques to extract information," said Prince. "I just don't see how you can give him a fair trial."

Guantanamo prisoner denounces war-crime trial
The brother-in-law of a 9/11 hijacker tells a military judge that the terror conspiracy case against him is a sham and has himself removed from the courtroom.

http://www.latimes.com/news/nationworld/world/la-na-gitmo10apr10,1,182003.story

By Carol J. Williams, Los Angeles Times Staff Writer
11:41 AM PDT, April 9, 2008

GUANTANAMO BAY, CUBA -- A Saudi prisoner today denounced the war-crimes case against him as a politically motivated "sham" and had himself removed from the courtroom in symbolic protest.

Ahmed Mohammed Ahmed Haza Al-Darbi, whose brother-in-law was among the Sept. 11 hijackers, informed the military judge hearing his terror conspiracy case that he wanted neither legal representation nor to be present at his trial.

Al-Darbi, 33, has been charged with conspiracy and material support for terrorism for allegedly training with Al Qaeda and plotting to attack ships in the Strait of Hormuz.

Al-Darbi, whose war-crimes case is one of seven inching their way toward trial by the military commissions, has yet to enter a plea and made clear he wouldn't be returning for future sessions.

He arrived in court in the white tunic and blue canvas shoes denoting a compliant detainee and politely told the judge, Army Col. James Pohl, that he neither wanted to be represented by the military lawyer assigned to his case nor by any civilian attorney.

"History will record these trials as a scandal," Al-Darbi said. "I advise you, the judge, and everyone else who is present to not continue with this play, this sham."

Another detainee charged with attempted murder in a grenade attack that wounded two U.S. National Guardsmen in Afghanistan also refused to cooperate last month. Mohammed Jawad, a 23-year-old Afghan who had to be dragged from his cell for a March 12 arraignment, said he would boycott proceedings he considers illegitimate.

Pretrial hearings have begun for two other defendants and three await arraignment, including one this week.

Prosecutors have announced their intentions to try seven other Guantanamo prisoners but have yet to serve them with the war-crimes charges announced as long as two months ago. Among those cases awaiting activation are capital charges against Sept. 11 alleged mastermind Khalid Sheikh Mohammed and five others accused of roles in those attacks.

The Army lawyer assigned to defend Al-Darbi, Lt. Col. Brian Broyles, is required by military commissions rules to represent the absent defendant anyway. But Broyles said he would seek guidance from his bar association in Kentucky, as well as from the Army judge advocate general corps, on whether ethical standards would prohibit his representation of a client who doesn't want him.

Broyles faces a dilemma if he is ordered by the judge to defend Al-Darbi and advised by legal ethicists against an active role. "There's every possibility that I'll end up being a potted plant," Broyles said.

In his brief address to Pohl, Al-Darbi repeated claims that he had been abused while in U.S. custody in Afghanistan.

Broyles had told journalists last month that he'd been told by Al-Darbi that an Army counterintelligence specialist had beaten him and left him hanging from handcuffs during interrogations at Bagram Air Base north of Kabul. The soldier, Pfc. Damien Corsetti, was court-martialed in 2006 for abuse involving another detainee.

Broyles indicated any trial of his client would probably be bogged down in procedural wrangling for months. Al-Darbi has never been determined to be an unlawful enemy combatant, a necessary step before the tribunal can claim jurisdiction in the case.

None of the allegations against Al-Darbi tie him to the Sept. 11, 2001, terror attacks. His brother-in-law, Khalid al-Mihdhar, was one of the five Al Qaeda hijackers who commandeered American Airlines Flight 77 on Sept. 11, 2001, and plowed it into the Pentagon.

ACLU to Back Up Defense of 9/11 Detainees

http://online.wsj.com/article/SB120726400995288065.html?mod=googlenews_wsj

By JESS BRAVIN
April 4, 2008; Page A3

WASHINGTON -- The American Civil Liberties Union is spearheading a high-profile effort to defend Khalid Sheikh Mohammed and other alleged 9/11 conspirators from conviction and execution by the Bush administration's military commissions at Guantanamo Bay.

Backed by a slate of prominent legal figures, including former Attorney General Janet Reno and former Federal Bureau of Investigation Director William Webster, the ACLU has assembled a team of top civilian attorneys to supplement the military defense counsel assigned to represent Guantanamo's "high-value detainees."

The ACLU has the support of Guantanamo's chief military defense lawyer, Col. Steven David, who says the government hasn't provided him sufficient resources to adequately contest a death-penalty trial.

The effort significantly adds to the legal forces that over the past seven years have challenged the administration's plan to run an offshore court that provides defendants fewer rights than civilian trials or courts-martial. The addition of the ACLU in particular, with its large financial resources, is a major shot in the arm for those who oppose the tribunal system.

The administration has announced plans to seek the execution of seven Guantanamo prisoners, who will be tried before an offshore military commission using a new rulebook drafted by the Defense Department.

The creation of a high-powered legal defense team is a step toward answering the many questions about how the tribunals will operate. Much remains unclear, including rules of evidence and what access the press and public will have to the proceedings.

While civilian courts provide additional help for capital defendants, the military commission procedures don't specify any particular requirements, Col. David said.

He said he intended to follow the guidelines adopted by the American Bar Association, which call for each defendant to have at least two qualified attorneys, an investigator and a "mitigation specialist," to research arguments against execution should a conviction result.

His current office is too small to provide that level of staffing and military attorneys have little experience with death-penalty litigation, he said.

"An office where everyone is death-penalty qualified and has tried at least one death penalty case? Don't have it. Won't have it," said Col. David, a reservist who in civilian life is a county judge in Indiana.

The National Association of Criminal Defense Lawyers is working with the ACLU to provide death-penalty lawyers, while other groups, including the Center for Constitutional Rights in New York and Reprieve, a British nonprofit, have helped represent other Guantanamo prisoners.
[Janet Reno]

The groups have approached private foundations to seek funding help for the defense effort, people familiar with the project say. A spokeswoman for one of those foundations, George Soros's Open Society Institute, said it had "received requests related to the Guantanamo detainees" but has not yet decided whether to get involved.

Maj. Bobby Don Gifford, legal spokesperson for the military commissions, said "the Military Commissions have gone to great lengths to provide a system that is full, fair, and just" and suggested the commissions already had adequate resources. He added that ABA guidelines aren't binding on any court.

The high-value detainees have been held under extraordinary security at Guantanamo Bay and most have never seen a lawyer. They need not accept either military counsel or the ACLU lawyers. But Col. David said that in light of their harsh treatment by U.S. authorities -- Mr. Mohammed, for instance, has been subjected to waterboarding -- the prisoners might distrust military counsel.

Anthony Romero, the ACLU's executive director, said he had recruited a "dream team" of more than 30 lawyers to work on the project, including Edward McMahon, who helped represent convicted 9/11 conspirator Zacarias Moussaoui in federal district court.

"The defendants in these proceedings have been charged with horrendous crimes," Mr. Romero said in a written statement. But "it is a central tenet of our system of justice that guilt must only be decided after a fair trial, not beforehand," he said.

Mr. Romero acknowledged that standing up for the alleged 9/11 conspirators might be unpopular. He recalled past instances when the organization has represented widely detested clients, such as when neo-Nazis sought to march through a largely Jewish neighborhood of Skokie, Ill., in 1977.

The organization sought to mitigate a public outcry -- and perhaps the alienation of some donors -- by lining up support from such figures as Ms. Reno and Mr. Webster.

Ms. Reno, who spent 15 years as the local prosecutor in Miami before President Clinton named her attorney general, said in a statement provided by the ACLU that "this is the time to demonstrate to the world that the United States need not abandon its principles, even as it seeks to ensure the safety of its citizens."

Eric M. Freedman, a Hofstra University law professor who helped draft the ABA's death penalty guidelines, said the ACLU initiative didn't relieve the government's responsibility to pay for an adequate defense.

Gitmo tribunal rules limit evidence disclosures
As the Guantánamo war court edges toward full-blown trials, closures, censorship and document delays cloud transparency.

http://www.miamiherald.com/519/story/480840.html

By CAROL ROSENBERG
[email protected]
Posted on Thu, Apr. 03, 2008

GUANTANAMO BAY NAVY BASE, Cuba -- A defense lawyer lets slip at the war court convening here that a battlefield commander changed an Afghanistan firefight report in a way that seemed to help a U.S. government murder case. Reporters hear the field commander's name but are forbidden to report it.

In another case, a judge approves the release of a captive's interrogation video showing the blurred face of an American agent. But a federal prosecutor on loan to the Pentagon withholds it "out of an abundance of caution.''

Even as the U.S. government edges toward full-blown, war-crimes trials by military commission here, with more hearings next week, all sides are grappling with what information can be made public and what must be kept secret.

Consider: A new courtroom here sequesters Pentagon-approved spectators behind a soundproofed window. If a terror suspect tries to shout about his treatment in U.S. custody, a military censor can mute the audio feed that observers hear.

Under rules that protect interrogation techniques, the Pentagon's war court won't let the reputed 9/11 architect, Khalid Sheik Mohammed, say he was waterboarded -- something the CIA director, Air Force Gen. Michael V. Hayden, confirmed on Feb. 5.

Pentagon officials defend the Military Commissions as engaged in a delicate balancing act -- working to mete out justice to war-on-terrorism captives without exposing U.S. intelligence tactics and personnel to public scrutiny.

As long as there is an al Qaeda, they argue, such information could be used to hurt Americans or their allies.

At the same time, the commissions architects have long pledged that they will be open to international scrutiny.

''We can't disclose classified information. We can't disclose privacy information,'' the war-court legal advisor, Brig. Gen. Thomas Hartmann, said in an interview.

Unlike in federal courts, jurors at commissions are U.S. officers. In some circumstances, they can see or hear evidence that is shielded from the public.

Hartmann argues that a commissions defendant gets the same rights as a soldier at a court-martial -- among them an American military lawyer to defend him, and a presumption of innocence.

Attorneys for the Guantánamo captives disagree. They argue that, unlike civilian or military justice systems, the rules favor the government and permit evidence gleaned from abusive interrogations.

The Pentagon prosecutor has accused six of the 280 or so captives here of being 9/11 conspirators. If Hartmann's boss approves the death-penalty charges, conviction could end in their execution.

ACLU SUES
Meantime, the American Civil Liberties Union is suing the Bush administration in federal court to unseal portions of transcripts from military hearings, in which Mohammed and others now held at Guantánamo lay out allegations of torture.

'There is no remotely legitimate basis for the government to withhold these prisoners' account of their mistreatment,'' says Ben Wizner, an ACLU staff attorney and sometime war-court observer.

''I would simply note that governments don't censor information to conceal lies,'' Wizner said. "They censor information to conceal the truth.''

The military says these trials -- the first war-crimes tribunals since World War II -- are unprecedented because they risk talking about tactics while the nation is at war. Hence, the need for secrecy.

'VAMPIRES'
Critics say such secrecy could strip the military commissions of legitimacy.

When he was chief prosecutor, Air Force Col. Moe Davis once likened Guantánamo detainees to ''vampires'' fearful of the bright light of American justice.

But then in October he resigned his post, protesting what he called political pressure to speed up the cases -- and sacrifice transparency. Rushing them, he said, risks using secret evidence or confessions gained through tough interrogation tactics.

With time, he said in a recent interview, the prosecution can build public cases using evidence from before Mohammed's capture -- and before he was waterboarded by the CIA.

''If they want to take KSM out and shoot him, I would have no problem with that. Fine,'' he said, using Mohammed's initials. "If they want to call it military justice, you've gotta give him a fair trial.''

'PROTECTED'
Meantime, the Pentagon has created a labyrinth of bureaucracy that shields from public disclosure some of the inner workings of the commissions.

Reporters and other observers must agree to a series of regulations that have no counterpart in the civilian court system. Journalists are forbidden, for example, to report anything uttered in court that a Pentagon security officer declares "protected information.''

Earlier this month, a Navy defense lawyer mistakenly spoke the last name of the battlefield commander at the capture of a 15-year-old Canadian in Afghanistan. Reporters were instructed to identify him only as ''Lt. Col. W.,'' or risk being banned from covering the court.

In the case of the interrogation video, Judge Keith Allred, a Navy captain, approved its release in December. It shows Osama bin Laden's driver, a Yemeni in the garb of a bushy-bearded South Asian, being questioned soon after his capture by U.S. allies in November 2001 in Afghanistan.

The driver's attorney, Lt. Cmdr. Brian Mizer, believes it is the first recorded battlefield interrogation of an alleged al Qaeda associate during the U.S. invasion meant to topple the Taliban, dismantle al Qaeda and capture bin Laden and other 9/11 plotters.

'CAUTION'
But Army Reserves Maj. Bobby Don Gifford, a federal prosecutor on loan to the Pentagon as a public-affairs specialist, said he chose to withhold it from public view ''out of an abundance of caution,'' and offered a cascade of explanations in a March 17 e-mail:

Gordon England, deputy secretary of defense, issued a memo banning the release of Guantánamo detainee photos. The Pentagon is bound by the Geneva Conventions not to humiliate detainees, it said, and "We respect the dignity of all persons.''

Then this, 'Geneva Conventions prohibit the use of images that could be deemed 'propaganda,' and because I don't know or can control what others may do with it -- I don't want to be in the position of violating the law -- thus I'm exercising caution.''

Under the system, the Pentagon says the Office of Military Commissions -- not the judge -- has the last word on what the public can see.

In a November response to a written protest by attorneys for The New York Times and other news organizations, the commission deputy legal advisor, Michael Chapman, explained it this way: Military judges are charged with "the delicate balance of providing for the public interest in the commission proceedings, protecting the rights of the accused, maintaining witness privacy, securing classified or sensitive information and ensuring the interests of justice are appropriately respected and protected.''

LEAKED VIDEO
Despite the controls, some of the trial evidence is popping up elsewhere.

A video clip of Canadian captive Omar Khadr allegedly learning to plant mines as a teen in Afghanistan turned up on 60Minutes last year. Yet the Pentagon has so far declined to provide reporters covering the commissions with copies of it, saying they don't know who leaked it -- or how.

Khadr's Pentagon-appointed defense attorneys have consistently complained about a lack of transparency in the process. Khadr is accused of throwing a grenade in a 2002 firefight in Afghanistan that fatally wounded a sergeant with the U.S. Special Forces.

3rd Guantanamo detainee to boycott trial
The prisoner says that his only crime is being Sudanese and that the 9/11 attacks exposed U.S. 'hypocrisy.'

http://www.latimes.com/news/nationworld/nation/la-na-gitmo11apr11,1,2726342.story

By Carol J. Williams, Los Angeles Times Staff Writer
April 11, 2008

GUANTANAMO BAY, CUBA -- A Sudanese prisoner with long ties to Osama bin Laden told the war-crimes tribunal here Thursday that the Sept. 11 attacks dealt heavy blows to U.S. security and exposed the "hypocrisy" behind American claims that it stands for equality and justice.

Appearing at his arraignment, Ibrahim Ahmed Mahmoud Qosi refused to accept legal representation for his trial before the Pentagon's military commissions.

After a rambling statement, he announced that he would boycott further proceedings.

The bearded 47-year-old was the third Guantanamo defendant in the last month to call the military tribunal illegitimate and refuse to cooperate in his own defense.

"I leave in your hands the camel and its load for you to do whatever you wish," he told Air Force Lt. Col. Nancy Paul, the judge preparing for his trial on charges of conspiracy and material support for terrorism.

Qosi also accused the U.S. military of discrimination against citizens of the Third World, noting that two British detainees and an Australian charged along with him four years ago have since been released under pressure from those governments.

"The only war crime I committed and for which I'm being tried today before you and which I admit having committed is, in truth, my nationality," said the tall, slender Qosi. "My crime is that I'm a Sudanese citizen."

A day earlier, Saudi prisoner Ahmed Muhammed Ahmed Haza Darbi deemed the tribunal a "sham" and announced that he would boycott subsequent sessions. On March 12, Afghan defendant Mohammed Jawad also rejected the forum.

The succession of defendants refusing to cooperate with the tribunal puts the onus on the U.S. government to "show that this is not a complete sham," said Jamil Dakwar, a staff attorney with the American Civil Liberties Union observing the arraignment.

He said Qosi's claim of nationality bias called into question "the guarantee of equality before the law that is a hallmark of American justice."

The chief prosecutor for the commissions, Army Col. Lawrence Morris, said that he was concerned about the boycotts but that the government remained committed to a just process.

Paul accepted Qosi's rejection of legal representation by Navy Cmdr. Suzanne Lachelier or any other lawyer willing to submit to the government's rules and practices.

Unlike U.S. federal courts, the Guantanamo tribunal permits hearsay evidence as well as information gleaned from coercion and makes no guarantee that the accused will be able to confront his accusers or know all the evidence against him.

Qosi said he would act as his own attorney and insisted on reading a statement.

Quoting an Al Jazeera analyst shortly after the Sept. 11 attacks, Qosi said they dealt harsh blows to the United States "militarily, economically, in security and spirit-wise."

He added that in his own view the attacks also hurt the United States legally because, he said, they led the country to violate its standards of human rights and justice.

"After the collapse of the towers, after the collapse of the Pentagon, all these false masks fell away and your wrongs were exposed," Qosi told the court. "The whole world has a headache from your hypocrisy."

Lachelier interrupted the defendant shortly after he began, urging the judge to order a psychological evaluation. Paul cut Qosi off after a few minutes, saying she feared he might be incriminating himself.

The defendant, who had been charged with a single count of conspiracy under the previous military commissions system four years ago, was cooperative with his defense team at that time but has twice refused to meet with Lachelier, according to the guard force of the Joint Task Force that runs the prisons.

Lachelier attempted to gain entrance to the facility where Qosi was being held to hear him tell her directly that he didn't want to go over his case.

"It is interfering with his right to counsel that we have to go through his jailers" to communicate with him, Lachelier said, adding that she was concerned Qosi had been threatened by guards not to accept legal assistance.

When she got her first glimpse of Qosi a few minutes before Thursday's arraignment, she said he appeared "very nervous, very distressed, frantic almost," a state she attributed in part to the security precautions during transport from the prison to the courthouse, among them hooding, shackling and ear protection to block out sound.

Paul ordered Lachelier to represent Qosi at any tribunal procedures he boycotts.

Lachelier said she was uncomfortable with that order, given that he had clearly rejected her.

She said she would have to consult with her bar association in California for ethical guidance on what role she should play.

The trial process recognizes a defendant's right to represent himself but insists that a lawyer take the lead in his defense if he is absent.

The issue of representing a defendant against his wishes surfaced in several of the 10 cases of Guantanamo detainees charged with war crimes under the previous process enacted by President Bush in November 2001 but struck down as unconstitutional by the Supreme Court in June 2006.

An act of Congress created the current system three months later, and 14 of the 280 terrorism suspects held here have since been charged with war crimes or identified as likely to be charged soon.

[email protected]

U.S. to televise Guantanamo trials to 9-11 families

http://news.yahoo.com/s/nm/20080418/ts_nm/guantanamo_television_dc

By Jane Sutton
Fri Apr 18, 8:40 AM ET

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The U.S. military will televise the Guantanamo trial of accused September 11 mastermind Khalid Sheikh Mohammed and five other suspects so relatives of those killed in the attacks can watch on the U.S. mainland.

"We're going to broadcast in real time to several locations that will be available just to victim families," Army Col. Lawrence Morris, chief prosecutor for the controversial war crimes court, said at the naval base recently.

In February, military prosecutors charged Mohammed and five other captives with murder and conspiracy and asked that they be executed if convicted of plotting to crash hijacked planes into New York's World Trade Center and the Pentagon in 2001.

No trial date has been set but they are the first Guantanamo prisoners charged with direct involvement in the attacks that killed nearly 3,000 people.

Morris said several of the victims' relatives asked to watch the trials at the detention center set up in Guantanamo Bay naval base to try foreign terrorism suspects.

The base sits on a dusty patch of the island of Cuba and does not have many flights, beds or courtroom seats to accommodate spectators.

The trials will be beamed to closed-circuit television viewing sites on military bases at Fort Hamilton in New York, Fort Monmouth in New Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts, Morris said.

The military is borrowing a page from the civilian court sentencing hearing of Zacarias Moussaoui, a flight school student who is the only person convicted in the United States in connection with the September 11 plot. He pleaded guilty to conspiring with al Qaeda and was sentenced to life in prison.

U.S. federal courts normally ban cameras. But through an act of Congress, Moussaoui's 2006 court hearing in Virginia was shown by closed-circuit television to victims' families at courthouses in Boston, New York, New Jersey and Pennsylvania.

"We got much more information from those hearings than we ever got from the 9-11 Commission," said Lorie Van Auken, whose husband Kenneth died in the World Trade Center, referring to the investigation the U.S. Congress launched into the attacks.

FAIR TRIALS OR SHOW TRIALS?
Some of the victims' relatives praised the U.S. military for ensuring they had access to the Guantanamo proceedings.

Hamilton Peterson, whose father and stepmother, Donald and Jean Peterson, died on the plane that crashed in Pennsylvania, called the prosecutors "true patriots," and said he was grateful for "the ability to see justice being fulfilled in one of the most significant attacks on America's heartland."

Others urged the trials be televised nationwide without restriction because of the sweeping impact of the attacks.

The broadcasts will mark the first time a Guantanamo detainee's face has been shown publicly. The U.S. military prohibits journalists and other visitors from taking photographs or video that shows faces, citing a provision of the Geneva Conventions that aims to protect war captives from "insults and public curiosity."

The U.S. military lawyer assigned to defend Mohammed, Navy Capt. Prescott Prince, said if the trials are truly fair, then broadcasting them widely would prove that to the world. But he worried about setting a precedent by televising what he suspects will be show trials.

"I can just imagine American soldiers and sailors and airmen being subjected to similar show trials worldwide," he said.

He said he doubts the defendants can get a fair trial in the Guantanamo court because it accepts hearsay evidence that may have been obtained through cruel and dehumanizing means. The Geneva provision cited in shielding prisoners' faces also bans "acts of violence or intimidation," he noted.

The CIA held Mohammed in a secret prison for years and acknowledged interrogating him with methods that included the simulated drowning technique known as waterboarding.

Some of the victims' relatives also said they thought the trials should be held in a regular court, open to the public and using only "evidence that's above reproach."

"This is not about revenge, it's about justice," said Valerie Lucznikowska, a New Yorker whose nephew Adam Arias died in the World Trade Center.

"I don't want it to be a lynching. I'm concerned that people like Khalid Sheikh Mohammed, we won't be able to find them guilty because of what we've done with them. It's a horrible conundrum."

Suspicions grow that drugs were used in detainee interrogations

http://rawstory.com/news/2008/Suspicions_grow_that_drugs_used_in_0422.html

Muriel Kane
Published: Tuesday April 22, 2008

The Washington Post charged on Tuesday that detainees at Guantanamo Bay may have been injected with drugs in the course of their interrogation. "At least two dozen other former and current detainees at Guantanamo Bay and elsewhere say they were given drugs against their will or witnessed other inmates being drugged, based on interviews and court documents," the Post reports.

The CIA and the Defense Department have denied using drugs in interrogations and suggest that the detainees' stories "are either fabrications or mistaken interpretations of routine medical treatment."

However, a newly-released memo written by Justice Department lawyer John Yoo in 2003, which argued that nothing in U.S. law limits what the president can order done to prisoners in time of war, also suggested that drugs could be used on prisoners as long as they did not cause permanent psychological damage. Even with that restriction, such a practice would likely be in violation of the Geneva Conventions.

The Post points out that "the interrogation memo was considered a binding opinion for nine months until December 2003, when OLC chief Jack Goldsmith told the Defense Department to ignore the document's analysis."

According to Congressional Quarterly, the use of drugs on detainees was anticipated by the administration as early as January 2002 and was first rationalized by Yoo in a 2002 memo for top administration officials. The justification was further elaborated by Yoo in his 2003 memo due to "the rising resistance to harsh interrogation techniques by military lawyers and the FBI."

The detainee claims cited by the Post have been widely circulated for several years, although they have been less publicized within the United States.

When four British subjects were released from Guantanamo in 2005, one of them claimed that "he was repeatedly injected with an unknown substance that triggered psychosis."

Another British detainee told a television interviewer after his release in 2004 that "many detainees were given regular injections, after which 'they would just sit there like in a daze and sometimes you would see them shaking'" and that "he was beaten and put in isolation because he refused injections and was sometimes forcibly given unidentified drugs."

A Moroccan detainee released in 2004 also claimed he was given forcible injections, and Jose Padilla's lawyer has asserted that his client was given drugs against his will, possibly LSD or PCP. However, no charges of this nature have ever been proven.

Lawyer fears 9/11 mastermind trial will be 'insanity' Story Highlights
Lawyer defending suspected 9/11 mastermind calls waterboarding 'mock execution'

http://www.cnn.com/2008/CRIME/04/23/ksm.attorney/index.html

By Kelli Arena and Carol Cratty
4/23/2008

WASHINGTON (CNN) -- Prescott Prince is a small-town lawyer who has never taken a death penalty case to trial. Yet he finds himself involved in one of the biggest capital punishment cases this century: He's defending the alleged mastermind of the September 11, 2001, terror attacks, Khalid Sheikh Mohammed.

Prescott Prince says the suspected 9/11 mastermind deserves a fair trial.

1 of 2 He readily acknowledges how his client is perceived as "one of the most reviled people" in the world. But he says it's imperative America give Mohammed a fair trial, just like anyone else accused of a crime.

No civilian court, he says, would accept confessions obtained after a defendant was mistreated. But the CIA admits Mohammed was waterboarded, a controversial interrogation technique that involves simulated drowning.

"I take the position that this is mock execution. ... Colloquially speaking, at least it's torture," Prince says.

The fact whatever Mohammed said during such duress could be used at trial is alarming to Prince.

"That's not the rule of law. That's just insanity." Watch waterboarding is "mock execution" »

A Navy reservist who has been called to active duty, Prince, 53, rejects the suggestion that he is less than patriotic for representing an accused terrorist. "I had friends who were at the Pentagon the day it was attacked so I don't accept the concept of 'gee I don't know what it's like.'"

Prince is currently visiting the detention center at Guantanamo Bay in Cuba to meet his client. He was denied a meeting with Mohammed on Wednesday due to procedural problems; he will try again today.

Before Prince headed to Guantanamo, he told CNN he had no idea whether Mohammed will accept him as his lawyer. He says he's gone over what he's going to say "about a hundred times a day."

He's been reading the Koran and has met with psychologists and other lawyers who have represented accused terrorists. "This would not be the first time I've met with a client who initially did not want, if you will, court-appointed counsel," he said. "I've had clients call me almost any name in the book. I've had them refuse to come see me." Meet the attorney defending suspected 9/11 mastermind »

Still Prince realizes this is different. Very different.

Mohammed has been in custody since he was caught in Rawalpindi, Pakistan, in 2003. He was transferred from a secret location to Gitmo in 2006. The government says he confessed to his involvement in the September 11, 2001, attacks and many other terrorist plots.

The government in February said six terror suspects, including Mohammed, would go before military commissions and could face the death penalty if it is judged they were involved in the September 11 attacks. The proceedings are governed by the Military Commissions Act, which Congress passed to handle arrestees in the war on terror. See the terror suspects who could face the death penalty »

The act requires detainees have access to lawyers as well as to any evidence presented against them. They also will have the right to appeal a guilty verdict, potentially through a civilian appeals court and perhaps the U.S. Supreme Court, according to the act. Watch general describe charges against al Qaeda suspects »

In the case of Mohammed, the government acknowledged he was subjected to waterboarding, a harsh interrogation technique that many experts believe violates the Geneva Conventions' ban on torture. Waterboarding involves strapping a person to a surface, covering the face with cloth and pouring water over the cloth to imitate the sensation of drowning.

Prince finds that extremely troubling because he says a civilian court would never admit evidence gained through a coerced statement. The government says Mohammed has confessed to 9/11 and other terror plots.

"Even the greenest deputy sheriff or rookie police officer in Skunk Hollow County knows that if you rough up a defendant, anything he says after that is not going to be admitted into court," Prince says. "The officer might not like those rules, but he understands them and will abide by them."

But a judge in a military commission could have it entered into evidence. "We have created a system under the military commissions that says in essence, 'if he was roughed up, but what he says still seems reliable, we'll accept it any way.' And that's just wrong."

Prince says there are other complications. He may not have the chance to cross-examine Mohammed's accusers and may not see all the evidence to be put forward in court. Watch families of 9/11 victims push for fair trials »

Prince doesn't believe Mohammed can get a fair trial and says the country risks trashing "our constitutional values when it becomes convenient to do so."

"I don't want to impugn anyone's character, but this is where Ronald Reagan's term 'trust but verify' will come into play," he says.

The military has assigned him a three-person team consisting of another lawyer, an intelligence analyst and a paralegal. The American Civil Liberties Union and the National Association of Criminal Defense Lawyers have also teamed up to find volunteers to help Prince and the other lawyers defending accused terrorists at Guantanamo Bay.

Norman Reimer, the executive director of the NACDL, explained the daunting task this way:"It's going to require all of the ingenuity and resources -- not just to defend the accused -- but to defend the American system of justice and what we stand for in the world. That's what this is about."

Two lawyers from Boise, Idaho, have agreed to help Prince. No strangers to terrorism cases, David Nevin and Scott McKay won an acquittal for a Saudi man who faced terror charges.

Prince for years ran a small practice in Richmond, Virginia. But last year, the reservist was called to active duty and spent six months in Iraq. He never thought this would be his next assignment.

"I could have said, 'No,'" he says, before adding, "I don't think I would have been doing honor to myself or honor to my calling."

Alleged 9/11 plotters see Navy lawyers

http://www.miamiherald.com/509/story/512412.html

Posted on Mon, Apr. 28, 2008
By CAROL ROSENBERG
[email protected]

GUANTANAMO BAY NAVY BASE, Cuba -- Ten weeks after the Pentagon prosecutor swore out preliminary death penalty charges, Navy defense lawyers have had first talks with the top three alleged 9/11 conspirators.

For each of the men, it was his first private meeting with an attorney offering help after years of secret CIA custody and interrogation, including the waterboarding of one of them.

And only one of the three has so far agreed to accept the free-of-charge services of a military lawyer.

He is Ali Abdal Aziz Ali, a Pakistani man and the nephew of reputed 9/11 mastermind Khalid Sheik Mohammed -- who allegedly sent about $120,000 to the hijackers to fund, among other things, flight training at U.S. flight schools.

Navy Lt. Cmdr. Brian Mizer said Sunday that Ali, who speaks ''fluent'' English, agreed to let him defend him, along with two volunteer civilian lawyers from Seattle -- after two days of talks last week.

''He appears to be fine,'' Mizer said of this 30-something client.

Getting lawyers for the men has been a key hurdle in the Pentagon efforts to move forward on a complex conspiracy case of six men held here for the Sept. 11, 2001, attacks that killed 2,973 people in New York, at the Pentagon and in a Pennsylvania field.

Several alleged al Qaeda foot soldiers are boycotting their trials and have fired their lawyers, both military and civilian volunteers. Those men, however, face a maximum of life in prison if convicted, not death.

Charge sheets issued Feb. 11 propose the military execution of Ali and the five others, should they be convicted by a military commission.

No trial date has been set while a civilian Bush administration appointee named Susan Crawford decides whether and when to go forward with the 9/11 case.

While she looks at the charges, prison camp officials have been granting military defense lawyers restricted access to the accused -- imposing national security limits on them and taking custody of their notes while the Pentagon establishes Top Secret sites and clearances for defense teams.

Last week, Navy Reserves Capt. Prescott Prince, a defense counsel, introduced himself to Ali's uncle, who is known in the United States by his initials, KSM, and who allegedly ran the Sept. 11 plot for al Qaeda founder Osama bin Laden.

Mohammed has yet to agree to the military defense counsel.

Prince is assembling a four-attorney defense team to fend off the capital charges against Mohammed, whom the CIA has admitted to waterboarding in secret detention.

Prince calls waterboarding ''torture'' -- and says his client should be tried in a civilian or military court, not by commissions, where each military judge gets to decide whether to let the jury of U.S. military officers hear evidence gleaned through torture.

Prince and Mohammed met on Thursday under strict security arrangements that mostly muzzle the Navy Reserves captain who has practiced private law in Virginia for decades.

In parallel, Navy Reserves Cmdr. Suzanne Lachelier and Navy Lt. Ricardo Federico met with the 9/11 plot's alleged control officer, a Yemeni named Ramzi Bin al Shibh, and offered to defend him.

''He seems smart,'' Lachelier said of Bin al Shibh. ``I think he's checking us out. He's naturally very distrustful -- but very respectful.''

The three met for about five ''productive'' hours across two days, said Lachelier, who declared the talks ''favorable,'' although he did not yet agree to let them defend him.

They meet again in about two weeks.

Lachelier, a former San Diego federal public defender, said he did not seem averse to the idea of a woman lawyer leading his defense team. ''I didn't get any bad vibes in that regard,'' she said.

Bin al Shibh has been described as a KSM deputy who allegedly served as a key intermediary with some of the 9/11 suicide squads.

The American Civil Liberties Union has assigned Chicago lawyer Thomas A. Durkin to work with Lachelier. Durkin, a veteran civilian defense attorney, has defended alleged terrorists in federal courts where the government has invoked national secrets protections.

In announcing the arrival of the ''high-value detainees'' at Guantánamo in September 2006, President Bush defended rough interrogations as a war-on-terror necessity.

He said agents used an ''alternative set of procedures'' -- later identified by the CIA director, Air Force Gen. Michael Hayden, to include waterboarding -- on terror suspect Abu Zubaydah, to hunt down Bin al Shibh.

Also Sunday, Mizer said he met with Aziz Ali across two days, during which the 30-something detainee agreed to accept Seattle attorneys Jeff Robinson and Amanda Lee on the defense team. The two were signed up through an American Civil Liberties Union project, which is helping fund the work of civilian lawyers defending death penalty candidates at the war court.

Mizer, who is defending bin Laden driver Salim Hamdan of Yemen in a non-capital case, said he is forbidden from discussing his latest client's case under military intelligence rules that sealed his notes of their meeting in the prison camp lawyer's safe.

He described representing both men -- in separate proceedings -- as ``a delicate juggling act.''

In the Hamdan case, for example, Mizer has sought the testimony of KSM and other former CIA detainees to clear the driver of terror charges -- by adopting a government theory that the former CIA detainees are senior al Qaeda members.

Hamdan, 36, has an extensive civilian legal team working with Mizer, including the former Navy lawyer who helped overturn President Bush's first format for military commissions by challenging the driver's first war crimes case to the U.S. Supreme Court.

In contrast, Mizer is the only attorney so far to ever meet with Aziz Ali.

According to a Pentagon transcript, Aziz Ali told U.S. military officers a year ago that he neither knew of the 9/11 plot nor was a member of al Qaeda.

Asked about the cash transfers, he told the military panel that some wealthy Arab men living in the United States routinely sought funds for lavish lifestyles while studying abroad. He described one friend as an English language student who needed $100,000 cash in the United States -- to buy a Ferrari.

Two of the former CIA captives have yet to meet with their military defense counsel.

The sixth man accused in the conspiracy is Mohammed al Qahtani, a Saudi man in his 30s who has been held for years at Guantánamo and was subjected to a rough military interrogation regime approved by Donald Rumsfeld, unlike his alleged co-conspirators, who were held secretly by the CIA.

In the Qahtani case, according to a leaked log of his 50-day interrogation at Camp X-Ray here, U.S. interrogators in November and December of 2002 used sleep deprivation, left him strapped to an intravenous drip without bathroom breaks and had him strip naked to break his will.

They also told him to bark like a dog in a bid to get him to confess to being the so-called 20th Hijacker, the man who didn't get to the United States in time to join the 19 other terrorists in the 9/11 attack.

Qahtani has not yet met his military attorney, Army Lt. Col. Bryan Broyles. But his long-serving civilian attorney, Gitanjali Gutierrez of the New York Center for Constitutional Rights, said late Sunday that she has gotten Defense Department approval to defend him along with Broyles at the war court.

Getting Away With Torture
Legal maneuvering has shielded those responsible for conditions at Guantánamo Bay.

http://www.newsweek.com/id/134308

May 5, 2008 Issue

Our "terror trials" aren't working. The prosecutions of a fistful of prisoners at Guantánamo Bay—just getting underway after more than six years—are barely moving forward. Evidence is flimsy and stale. Prisoners claiming to have been abused and subjected to involuntary use of drugs are refusing to participate in their trials. There may yet be verdicts at Guantánamo. But following years of abuse, neglect and secrecy, there won't be justice. The other place we won't see legal accountability is at the upper levels of the Bush administratiom, where evidence of lawbreaking is largely dismissed or ignored. I want to be clear that there is no moral equivalence between the actions of members of the Bush administration and those of alleged "enemy combatants" at Guantánamo. But both the tribunals at Guantánamo and the wrongdoing in the Bush administration reflect how legal processes can fail under extreme political pressure.

Outside the Bush administration, there is bipartisan agreement that Guantánamo should be shut down and the military commissions scrapped. A compelling case could have been made for Nuremburg-style trials for some of the prisoners there—including Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks. But the CIA admits Mohammed was waterboarded, rendering his confession unreliable and any conviction a sham. And even if we do convict this handful of terrorists at Guantánamo, there still remain almost 300 detainees at the base, held there for years without charges. Some were turned in by Afghan captors for bounties. Some are held as a result of coerced testimony from others.

Full and fair trials might have happened for enemy combatants, but missteps have led to a legal process that now exists solely to prove the detentions were justified; that the captives are—as former Defense secretary Donald Rumsfeld once called them—"the worst of the worst." That's a political conclusion, not a legal one, and it's why Col. Morris Davis—former chief prosecutor for the military commissions at Guantánamo—resigned last fall, claiming political interference had created the impression of a "rigged process stacked against the accused." Davis later told The Nation that in a conversation with Pentagon general counsel William Haynes in 2005, Haynes told him flatly, "[w]e can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We've got to have convictions."

Bad evidence, tortured testimony, delay, error, guilty prisoners jumbled up with merely unlucky ones and the necessity of politically motivated convictions. But politics won't keep just the Gitmo prisoners from seeing justice. Politics will also keep those responsible for alleged crimes at Guantánamo from ever having to defend their actions in a court of law.

If prisoners were illegally tortured at Guantánamo and Abu Ghraib, who was responsible? A memo written by John Yoo, a deputy at the Justice Department's Office of Legal Counsel from 2002 to 2003, was declassified this month. He argued that military interrogators could subject suspected terrorists to harsh treatment as long as it didn't cause "death, organ failure or permanent damage." (It was later rescinded.) While it's possible Yoo was merely producing a theoretical, lawyerly opinion—he calls it "d = S"—it may well have opened the floodgates to prisoner torture and even death. Yet virtually nobody suggests Yoo should be subject to prosecution.

Yoo's possible contributions to torture at Guantánamo almost pale in comparison with ABC News's revelations that administration officials, including Dick Cheney, Condoleezza Rice, John Ashcroft, George Tenet, Colin Powell and Don Rumsfeld, met several times in the White House to discuss torture techniques for Al Qaeda suspects. The group signed off on slapping, pushing and waterboarding, in a manner "so detailed … some of the interrogation sessions were almost choreographed." Days later, President George W. Bush confirmed he "approved" of these tactics.

Yet despite the fact that senior members of the Bush administration may have violated the War Crimes Act of 1996, the Geneva Conventions and the Uniform Code of Military Justice, there is scant serious talk of legal accountability. The Justice Department's Office of Professional Responsibility is investigating whether agency attorneys provided the White House and CIA with faulty legal advice. That's a bit like setting the local meter maid on them.

Few believe the high-level architects of the American torture policy will ever face domestic prosecution. As Yale Law School's Jack Balkin pointed out, the political costs are too high: "One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy."

High-ranking administration officials and enemy combatants may have broken the law, and their legal situations are weirdly parallel. Both show how the rule of law can fracture under the strain of politics. Those alleged lawbreakers at Guantánamo can never be acquitted for purely political—as opposed to legal—reasons. The alleged lawbreakers in the Bush administration will never be held to account on precisely the same grounds.

Bin Laden's driver can send notes to detainees

http://www.miamiherald.com/news/breaking_news/story/515398.html

By CAROL ROSENBERG
[email protected]
Posted on Wed, Apr. 30, 2008

GUANTANAMO BAY NAVY BASE, Cuba -- A military judge on Wednesday ruled that Osama bin Laden's driver is permitted to sign a personal plea to alleged senior al Qaeda leaders segregated on this base, despite a U.S. government claim that it would breach national security.

Navy Capt. Keith Allred, the judge, issued the decision in early morning pretrial arguments in the case of Salim Hamdan, 36, who for the first time was absent from his hearing.

A day earlier he declared a boycott of his trial and forbade his lawyers to speak on his behalf as long as he was absent.

So Hamdan's lawyers sat at his defense table, silent, while Justice Department attorney John Murphy warned Allred that letting Hamdan write a note to reputed 9/11 mastermind Khalid Sheik Mohammed and others could expose ``grave national security secrets.''

Guards have isolated 16 so-called high-value detainees under top secret circumstances somewhere on this base; to speak to them, their lawyers need special classified status.

Allred, however, ruled that there was no inherent danger in letting Hamdan write the men a note asking for their written testimony ahead of their upcoming trial.

It might even help lure him back to court, the judge said.

Hamdan had never before missed a court date across nearly four years of on-again, off-again military commission sessions in his case.

He is charged as an al Qaeda co-conspirator and insider who as worked bin Laden's $200-a-month driver in Afghanistan. Hamdan is also accused of sometimes serving as bin Laden's bodyguard and faces life in prison if convicted.

Hamdan's trial is now scheduled to open June 2. It would be the first full-blown military commission, in which U.S. military officers are jurors.

Given the driver's dialogue with the judge on Tuesday, his five-member defense team is now facing the dilemma of how and whether to defend an empty chair.

Still, Allred said he chose to hold the early Wednesday morning session on the assumption that his lawyers could repair the rift -- sometime after war court staff left this remote base on an afternoon charter back to Washington.

He said he was proceeding on the belief that Hamdan was snoozing through the session behind the razor wire of Camp Delta.

According to the judge, Hamdan told some guards on Tuesday night: ``Don't wake me in the morning. I don't want to be there. I'm sleeping in.''

So, Allred said for the record: ``Mr. Hamdan slept in this morning. He's in his cell in the camp, and all five counselors are still on the case, still representing him.''

Defense lawyers said they would submit motions and replies in writing, apparently because their client was absent.

Prosecutors then argued against a series of defense requests.

The key decision was Allred's approval of Hamdan's signing a note to several so-called ''high value detainees'' held in segregation at Camp 7, appealing for their cooperation with defense attorneys in his case.

His lawyers have been trying for months to get the alleged 9/11 mastermind, known as KSM, and other former CIA detainees to answer written questions about Hamdan's role in al Qaeda.

The Justice Department's prosecutor, Murphy, objected to the idea, saying there were inherent risks in any detainee communication with ``the brain trust of some of the worst activity that the world has seen in our lifetime.''

Hamdan's lead defense lawyer, Navy Lt. Cmdr. Brian Mizer, says that those men would know best of all what Hamdan did, and support their defense that he was not a key al Qaeda insider but a driver on the fringes of the terror network.

Allred had earlier ordered the government to let Hamdan's lawyers submit written questions to Camp 7 captives, in Arabic, through a government security officer with authority to censor national security secrets from the answers.

No replies have emerged. Now the lawyers want Hamdan to write the men, in effect saying, 'This is me. Please answer my lawyers' questions.''

Specifically, Murphy said: ``We are worried about highly classified information and the manipulation that these detainees could undertake to thwart this commissions process.''

Government lawyers have long said they are safeguarding intelligence secrets surrounding the men, three of whom the CIA now confirms were waterboarded in custody.

Still unknown, however, is what other interrogation techniques were used on them and in years of CIA interrogation.

Murphy said the men should never have been allowed to know that Hamdan was held here, among about 260 non-high-value detainees.

The judge overruled the objection and authorized the prosecution to craft a short note, translate it and permit defense lawyers to get Hamdan's signature on it.

''They know Hamdan is here,'' Allred said.

``I think the government has an interest, the system has an interest, the defense has an interest in having him sit there and participate in the trial. It might give him a sense that he has some impact on his trial.''

Accused 9/11 planners set for court

http://tvnz.co.nz/view/page/536641/1780705

May 15, 2008 10:28 AM

Khalid Sheikh Mohammed, the man accused of masterminding the September 11 attacks, is tentatively scheduled to appear before a Guantanamo war court judge for the first time on June 5.

The chief judge for the Guantanamo tribunals, Marine Colonel Ralph Kohlmann, notified military defense lawyers of the tentative arraignment date for Mohammed and four other captives who could face execution if convicted of murder and conspiracy charges stemming from the 2001 attacks.

"The judge made it clear that if there were problems with scheduling that he requested to be notified immediately," Army Colonel Steve David, the chief defence counsel for the tribunals, said via e-mail.

The Pentagon announced on Tuesday that Susan Crawford, the official overseeing the special court at the US naval base in Cuba, had endorsed the charges against Mohammed and four other prisoners - Ali Abdul Aziz Ali, Ramzi Binalshibh, Mustafa Ahmed al-Hawsawi and Walid bin Attash.

They are accused of conspiring with al Qaeda to murder civilians and with 2,973 counts of murder, one for each person killed when hijacked passenger planes crashed into the World Trade Center, the Pentagon and a Pennsylvania field.

Crawford's approval cleared the way for their arraignment within 30 days, but the trials still face numerous hurdles.

The CIA has admitted subjecting Mohammed to harsh interrogation methods, including the simulated drowning technique known as waterboarding. That calls into question the reliability of his confession that he planned every aspect of the September 11 attacks.

The former chief prosecutor of the tribunals testified last month that political appointees and higher-ranking officers exerted illegal influence over the process, pushing prosecutors to use coerced evidence and rushing them to file charges against Mohammed and the other "high-value" prisoners before the November US presidential election.

A military judge has already disqualified the tribunals' legal adviser, Air Force Brigadier General Thomas Hartmann, from further involvement in the pending case against Osama bin Laden's driver, Salim Hamdan, and questioned his ability to act with the impartiality mandated by law.

Defence lawyers are expected to challenge Hartmann's role in the charges against Mohammed and the other four.

The Guantanamo tribunals are the first US war crimes tribunals since World War II. They were established after September 11 to try non-American captives whom the Bush administration considers "enemy combatants" not entitled to the legal protections granted to soldiers and civilians.

9/11 Co-Conspirators Charges Referred

http://www.blackanthem.com/News/commentary/9-11-Co-Conspirators-Charges-Referred16489.shtml

By U.S. Department of Defense, Office of the Assistant Secretary of Defense (Public Affairs)
Blackanthem Military News
May 14, 2008 - 12:17:01 PM

WASHINTON, D.C. - The Defense Department announced today that charges against five of the six detainees who are alleged to be responsible for the planning and execution of the attacks upon the United States of America on September 11, 2001 have been referred to trial by military commission. Those attacks resulted in the death of 2,973 people, including 8 children. The referred charges detail 169 overt acts allegedly committed in furtherance of the 9/11 events. The accused will face trial in Guantanamo Bay, Cuba.

In accordance with the Military Commissions Act of 2006, the Convening Authority has the sole discretion to determine what charges will be referred to trial. In exercising her independent judgment, the Convening Authority, Ms. Susan Crawford, has referred to trial charges against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi. The five accused will be tried jointly, and the cases are referred as capital for each defendant, meaning they face the possibility of being sentenced to death.

The Convening Authority has dismissed without prejudice the sworn charges against Mohamed al Kahtani. Because the charges were dismissed without prejudice, the government has the option of charging Kahtani separately, but he will not be tried with the other accused in this case.

The charges allege a long-term, highly-sophisticated, organized plan by al Qaeda to attack the United States. Each of the accused is charged with conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism.

Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, and Ali Abdul Aziz Ali are also charged with hijacking aircraft.

The charges allege that Khalid Sheikh Mohammed was the mastermind of the 9/11 attacks by proposing the operational concept to Usama bin Laden as early as 1996, obtaining approval and funding from Usama bin Laden for the attacks, overseeing the entire operation, and training the hijackers in all aspects of the operation in Afghanistan and Pakistan.

Walid Muhammad Salih Mubarak Bin 'Attash is alleged to have administered an al Qaeda training camp in Logar, Afghanistan where two of the September 11th hijackers were trained. He is also alleged to have traveled to Malaysia in 1999 to observe airport security by US air carriers in order to assist in formulating the hijacking plan.

Ramzi Binalshibh is alleged to have lived with the Hamburg, Germany al Qaeda cell where three of the 9/11 hijackers resided. It is alleged that Binalshibh was originally selected by Usama bin Laden to be one of the 9/11 hijackers and that he made a "martyr video" in preparation for the operation. He was unable to obtain a US visa and, therefore, could not enter the United States as the other hijackers did. In light of this, it is alleged that Binalshibh assisted in finding flight schools for the hijackers in the United States, and continued to assist the conspiracy by engaging in numerous financial transactions in support of the 9/11 operation.

Ali Abdul Aziz Ali's role is alleged to have included sending approximately $120,000 to the hijackers for their expenses and flight training, and facilitating travel to the United States for nine of the hijackers.

Mustafa Ahmed Adam al Hawsawi is alleged to have assisted and prepared the hijackers with money, western clothing, traveler's checks and credit cards. He is also alleged to have facilitated the transfer of thousands of dollars between the accounts of alleged 9/11 hijackers and himself on September 11, 2001.

The military commissions provide the following protections for the accused: to elect not to testify at trial and to have no adverse inference drawn from it; to be represented by detailed military counsel, as well as civilian counsel of his own selection and at no expense to the government; to examine all evidence presented to a jury by the prosecution; to obtain evidence and to call witnesses on his own behalf including expert witnesses; to confront and cross-examine every witness called by the prosecution; to be present during the presentation of evidence; to have no statements obtained by torture admitted; to have a military commission panel (jury) of at least five military members (12 in a capital case) determine guilt or innocence by a two-thirds majority, or in the case of a capital offense, at least 12 members must unanimously decide to impose a sentence of death; and the right to an appeal to the Court of Military Commission Review, then through the Court of Appeals for the District of Columbia Circuit to the U. S. Supreme Court.

These protections are guaranteed to the defendant under the Military Commissions Act, and are specifically designed to ensure that every defendant receives a fair trial, consistent with American and international standards of justice and the rule of law.

The charges are only allegations that each accused has committed a war crime under the Military Commissions Act. The accused are presumed innocent of any criminal charges unless proven guilty beyond a reasonable doubt at a military commission.

Lawyers seek dismissal of 9/11 charges

http://ap.google.com/article/ALeqM5hZXxZ9jWlnYZ5G_1_W_-FG8F2vHwD90OCM6O0

12 hours ago

SAN JUAN, Puerto Rico (AP) — Military lawyers for Khalid Sheikh Mohammed, the suspected mastermind of the Sept. 11 attacks, and four alleged coconspirators are arguing that charges against their clients should be dropped following illegal meddling by a Pentagon official.

A motion filed late last week before a U.S. war-crimes tribunal at Guantanamo argues that the case has been tainted by the involvement of the tribunals' legal adviser, Air Force Brig. Gen. Thomas Hartmann, who was removed from another case because he lacked the required neutrality.

The defendants are to be arraigned June 5 at the Guantanamo Bay Navy base in Cuba on charges including conspiracy, hijacking an aircraft and murder. The U.S. is seeking the death penalty for all five men.

In their filing, Pentagon-appointed defense attorneys noted that Hartmann was accused of urging prosecutors to pursue "sexy" cases and directing them to use evidence that a former chief prosecutor said was tainted by coercion.

A judge presiding over the trial of a former driver for Osama bin Laden ousted Hartmann from that case earlier this month, ruling that his instructions to prosecutors suggested that factors "other than those pertaining to the merits of the case" were at play.

In an interview last week, Hartmann told The Associated Press he expected defense lawyers for other detainees to use that ruling as grounds to challenge charges against their clients. But he said he was facing no pressure to resign.

Report: Military used harsh methods on 9/11 terror suspect

http://deepbackground.msnbc.msn.com/archive/2008/05/20/1043750.aspx

By Jim Popkin, NBC News Senior Investigative Producer
Posted on Tuesday, May 20, 2008 12:29 PM PT
Filed Under: Terrorism, Iraq

A new report by the Justice Department Inspector General details many of the harsh and intentionally humiliating techniques that the U.S. military used against Mohammed Al-Qahtani, a Saudi detainee at the Guantanamo Bay military prison who many U.S. officials believe was meant to be the 20th hijacker on Sept. 11, 2001.

The 438-page IG report focuses on the FBI's involvement in detainee interrogations in Iraq and Afghanistan. But it also provides a window into the methods used by the Defense Department and the CIA on uncooperative detainees such as Al-Qahtani.

Quoting military records and reports, the Justice Department Inspector General said that a "special projects team" of the U.S. military interrogated Al-Qahtani between November 2002 and January 2003.

Their methods included:

• tying a dog leash to Al-Qahtani's chain, "walking him around the room and leading him through a series of dog tricks."
• "repeatedly pouring water on his head"
• "stress positions"
• "20-hour interrogations"
• "forced shaving for hygienic and psychological purposes"
• "stripping him naked in the presence of a female"
• "holding him down while a female interrogator straddled the detainee"
• "women's underwear placed over his head and bra placed over his clothing"
• "female interrogator massaging his back and neck region over his clothing"
• "describing his mother and sister to him as whores"
• "showing him pictures of scantily clothed women"
• "discussing his repressed homosexual tendencies in his presence"
• "male interrogator dancing with him"
• "telling him that people would tell other detainees that he got aroused when male guards searched him"
• "forced physical training"
• "instructing him to pray to idol shrine"
• "adjusting the air conditioning to make him uncomfortable"

Hospitalization:

The IG report notes that in December 2002, during this period of intense interrogation, Al-Qahtani was hospitalized "as a result of the DOD interrogations" for hypothermia or "low blood pressure along with low body core temperature." The IG writes that while FBI agents were aware that Al-Qahtani was being subjected to intense questioning by the military, "we have no evidence that the FBI or DOJ were aware that the specific techniques described above were used on Al-Qahtani" at that time.

Qahtani has often been referred to as the 20th hijacker because of evidence that he tried to enter the United States a few days before the Sept. 11, 2001, attacks and because he was in touch with the men who became the hijackers. Al-Qahtani flew to the Orlando airport from Europe in August 2001, but was barred from entry to the U.S. Investigators later determined that Sept. 11 ringleader Mohammad Atta had been waiting to pick him up at the airport. Qahtani was captured in Afghanistan in December 2001.

Just last week, the Pentagon official in charge of war crimes cases declined to permit a case against Al-Qahtani to proceed, dismissing charges against him. The official, Susan Crawford, whose title is Convening Authority, approved death penalty charges against five other detainees in the 2001 attacks, while declining to approve charges Al-Qahtani. Crawford provided no explanation.

Her decision said the charges against Mr. Qahtani were being dismissed “without prejudice.” Later, a spokesman for military prosecutors said the government could “reinitiate charges against him at any time.”

Qahtani's defense lawyers and officials familiar with the case have said it is unlikely that Qahtani will face new charges because he was subjected to such aggressive interrogation techniques. Many of the aggressive interrogation methods used on Al-Qahtani were previously disclosed in TIME, which obtained an 84-page secret interrogation log prepared by his U.S. military captors.

--Contains background information from published reports.

Delay sought in Guantanamo 9/11 case

http://ap.google.com/article/ALeqM5hZXxZ9jWlnYZ5G_1_W_-FG8F2vHwD90P2O4O1

By ANDREW O. SELSKY – 19 hours ago

SAN JUAN, Puerto Rico (AP) — Military lawyers are seeking to delay the arraignment of five Guantanamo detainees suspected of mounting the Sept. 11 terrorist attacks, alleging the government has made it impossible to defend them, authorities said Monday.

The motions — four were filed in a flurry on Monday and one on Friday — attempt to postpone the first pretrial hearings for men charged with the 2001 attacks that killed almost 3,000 people in New York, Washington and Pennsylvania.

The arraignment is scheduled for June 5 at the remote U.S. Navy base in Guantanamo Bay, Cuba. The U.S. is seeking the death penalty for all five defendants.

A postponement would likely mean the hearing would not come until after the Supreme Court rules on the Bush administration's latest attempt to try terror suspects in the first U.S. war-crimes trials since World War II.

The Court declared a previous military tribunal system unconstitutional in 2006. It is expected to decide by the end of June whether the 270 men held at Guantanamo have access to regular U.S. courts, which could undermine the military trials.

Attorneys for the five men charged in the Sept. 11 attacks, including confessed mastermind Khalid Sheikh Mohammed, filed motions to delay their arraignment, Joe DellaVedova, a spokesman for the war-crimes tribunals, told The Associated Press.

Two military attorneys for Ramzi Binalshibh, who allegedly served as the main intermediary between the Sept. 11 hijackers and al-Qaida leaders, said they are working in "an extremely challenging environment."

Navy Cmdr. Suzanne M. Lachelier and her assistant counsel said flights to Guantanamo are limited and that, because all information they obtain from Binalshibh is "top secret," their notes can be kept only in a room without computers at the office of the chief defense counsel in Arlington, Va.

"Counsel have no means of taking the notes back with them to their offices in Arlington, Va.; detailed counsel are unable to work with the notes in their offices on-board Guantanamo Naval Station; and counsel cannot even confer with each other about any discussions had with any 'high value' detainee, unless they return to Arlington, Va.," their motion said.

Prosecutors have until May 25 to declare to the judge, Marine Col. Ralph Kohlmann, whether they oppose the motions.

Defense lawyer and Army Maj. Jon Jackson said his team does not have enough access to his client, Mustafa al-Hawsawi, or to secure facilities where classified material must be reviewed.

Al-Hawsawi, a Saudi, is accused of helping the Sept. 11 hijackers obtain money, clothing, traveler's checks and credit cards.

Jackson said he has met his client only twice.

According to a copy of the motion provided to the AP, Jackson has been barred from discussing those meetings with his assistant defense counsel, Navy Lt. Gretchen Sosbee, because the military has not yet given her security clearance. Sosbee accompanied Jackson to Guantanamo last week but was prevented from seeing al-Hawsawi, he said.

Furthermore, the defense has not received any potential evidence against al-Hawsawi supporting charges that "allege a complex conspiracy spanning several years," Jackson told the judge.

Defense lawyers are also crippled because they have been assigned no authorized location, at Guantanamo or in Washington, to review classified information, Jackson said in his motion.

"Counsel have no place to store work product, discuss classified material or prepare for their case while in Cuba," Jackson wrote, adding that construction of a secure facility in Washington — which was to have been completed by the end of 2007 — has not even begun.

DellaVedova insisted that defense lawyers have secure facilities at Guantanamo and in Washington to review the information.

Jackson asked the judge to delay his client's arraignment until the government provides a security clearance for Sosbee, supplies the defense team with secure facilities for classified material and allows "for defense preparation of this case." More time is also needed to obtain a civilian attorney for al-Hawsawi if he wants one, Jackson said.