Military Prosecutors Set To Open Major 9/11 Case

[Gold9472]

Defense stymied in 9/11 death-penalty case

http://www.miamiherald.com/news/brea...ry/431636.html

By CAROL ROSENBERG
crosenberg@MiamiHerald.com
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.

[Gold9472]

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."

[Gold9472]

Don't execute 9/11 accused: Mukasey

http://www.reuters.com/article/domes...35858520080314

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.

[Gold9472]

Lawyer: Gitmo trials pegged to '08 campaign

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

BY CAROL ROSENBERG
crosenberg@MiamiHerald.com
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.

[Gold9472]

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

http://news.yahoo.com/s/nm/20080409/...namo_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."

[Gold9472]

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/nationwo...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.

[Gold9472]

ACLU to Back Up Defense of 9/11 Detainees

http://online.wsj.com/article/SB1207...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.

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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
crosenberg@MiamiHerald.com
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.

[Gold9472]

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/nationwo...,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.

carol.williams@latimes.com

[Gold9472]

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

http://news.yahoo.com/s/nm/20080418/..._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."