Key 9/11 Suspect To Be Tried In New York

9/11 Suspects' Attorneys Accuse Defense Department of Snooping on Correspondence

http://www.foxnews.com/politics/201...efense-department-snooping-on-correspondence/

By Catherine Herridge
Published November 01, 2011

The military lawyers for the 9/11 suspects, in what is believed to be an unprecedented legal move, are accusing the Defense Department of sanctioning “practices that are unlawful” that will “effectively stall this case.”

In a letter to the head of detainee affairs obtained by Fox News, military attorneys for the 9/11 suspects, including the self-described architect of the attacks, Khalid Sheikh Mohammed, as well as lawyers for other high-value detainees, claim that correspondence between the detainees and their attorneys is routinely opened, read and even confiscated by Defense Department officials.

“The policies and practices are unlawful and will effectively stall this case: these procedures violate attorney-client confidentiality privilege,” the letter says. And in what appears to be a thinly veiled critique of broader policy, the lawyers write, “A failure to act on this concern belies any claim to transparency and fairness.”

In the three-page letter, signed by nine military attorneys, Defense Department officials are scolded for allegedly ignoring rules laid out by the military commissions. The 9/11 case was first designated for a federal court trial in New York City two years ago, but it was ultimately sent back to the commissions by Attorney General Eric Holder in April after opposition by New York City officials, the public and some members of Congress.

More than a decade after the murder of nearly 3,000 Americans in the 9/11 attacks, there is still no public timetable for an arraignment at the Guantanamo Bay facility.

“The Military Commission Rules of Evidence, in Rule 502, specifically protect attorney-client privileged material from disclosure to anyone aside from the client and his legal team,” the lawyers state. While claiming the correspondence is not classified, the attorneys add that “Violations of attorney-client privilege are acutely egregious in the context of death penalty litigation, where the Supreme Court has long held that heightened Due Process applies.”

The letter says the lawyers first sought redress through the office that oversees the detention operation at the Navy base at Guantanamo – before taking the complaint to the senior Defense Department official responsible for detainee affairs.

“The problems with legal materials were brought to your direct attention more than five months ago, and again two weeks ago when you were copied on correspondence to (base officials)," it says. "We have received no response to any of our letters.”

A source familiar with the military lawyers' complaints told Fox News it was not about the 9/11 suspects mail because “nobody cares about the security of Khalid Sheikh Mohammed’s mail,” but the dispute framed a much larger issue -- in this case, the sanctity of a lawyer’s relationship with a client, even if the clients are some of the most hated men on the planet.

The lawyers complain that "counsel are in the untenable position of having either to violate professional ethical standards in order to communicate with our clients or cease communicating with our clients.”

Fox News is told that if there is no resolution, the military lawyers are laying the groundwork for a federal court action. The letter hints at that prospect: “Absent a meaningful response and the institution of remedies, the ongoing concern will be litigated to the fullest extent.”

While not familiar with the specifics of the complaint, a former Defense Department official told Fox News that there can be sound security reasons for the review of materials. Fox News sought comment from the media office responsible for the undersecretary of detainee affairs. The Defense Department media office was sent a copy of the letter, but there was no immediate response.

Guantanamo wants access to communications between lawyers, 9/11 suspects, sparking backlash

http://www.washingtonpost.com/world...from-lawyers/2011/12/27/gIQA3rnkKP_story.html

By Associated Press, Published: December 27

SAN JUAN, Puerto Rico — The new commander of the Guantanamo Bay prison wants a team of government and law enforcement officials to be allowed to review all communications between lawyers and inmates accused of helping organize the Sept. 11 attacks, The Associated Press has learned.

The proposed changes, contained in a 27-page draft order, have sparked a backlash from the Pentagon-appointed attorneys representing the five Guantanamo prisoners charged in the attacks. They say the new rules would violate attorney-client privilege and legal ethics and deprive the prisoners of their constitutional right to counsel.

The order is still in draft form and has not yet been signed by the commander, a detention center spokeswoman, Navy Cmdr. Tamsen Reese, said Tuesday. She said the commander was not available for an interview.

Lawyers for the Sept. 11 prisoners received the draft order from the commander, Navy rear Adm. David Woods, on Dec. 22 and were told to sign an agreement to abide by the rules within 48 hours.

Instead, they sent a written response contending that requiring them to abide by such rules in order to see their clients was illegal.

“This requirement, as a precursor to engaging in client communications, interferes with the attorney-client relationship, compels counsel to violate ethical obligations, and therefore renders it impossible for counsel to effectively represent our clients,” they wrote, appealing for more time to review the proposed order.

The memo was signed by at least one member of each legal team representing the five prisoners, according to a military official who spoke on condition of anonymity because the document had not been publicly released.

The five prisoners accused of helping to organize the Sept. 11 case are expected to be arraigned at the base in 2012 in what would be the most high-profile U.S. war crimes tribunal since the World War II era. The five, including the self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed, are facing charges that include murder and could be sentenced to death if convicted.

The Sept. 11 trial has been delayed for years by legal challenges and a dispute between members of Congress and the White House over whether it should be held in a civilian court on the U.S. mainland or in a tribunal at Guantanamo. A dispute over communications rules between prisoners and their lawyers could add another delay.

The most significant disagreement is over the handling of legal communications, which are typically sent by courier from the defense lawyers, who are based in the Washington area, and the prisoners at the base on the southeastern corner of Cuba.

Under the new rules, a “privilege team,” which would include Department of Defense and law enforcement officials, would conduct a security review of all communications to the prisoners, according to the memo. The lawyers say such a review is unnecessary, since they all have security clearances and know not to release classified information, and also overly intrusive.

They say it would be impossible for Woods to ensure that these officials do not share this information with the prosecution or others because the members of the team wouldn’t be under his command.

The chief defense counsel of the military tribunals, Marine Corps. Col. Jeffrey Colwell, said he shares the concerns of the attorneys in the Sept. 11 case. He also objects to a provision in the new rules that would allow detainees to receive only letters from their lawyers and not any supporting documents such as legal motions or articles about their case.

“The government’s interpretation is very restrictive,” Colwell said.

Woods can change the rules because he has authority over the detention center, where the U.S. now holds 171 prisoners. The government has said that 30-60 of the prisoners could be charged before military tribunals and the new rules would only cover communications between those prisoners and their lawyers. A separate set of rules covers the rest.

Woods has not said publicly why he has proposed the new rules. In his draft order, he says the new rules he has proposed are motivated by his responsibility for “maintaining safety and security, as well as good order and discipline,” at the prison.

This is not the first attempt by Woods, who took command Aug. 24, to tighten security at the prison.

In October, the admiral ordered a search of prisoner’s cells and the plastic bins where they are allowed to keep personal papers such as mail from their lawyers or family mail sent to them through the Red Cross.

Navy Cmdr. Thomas Welsh, the senior legal official at the detention center, testified at a hearing in November that the inspections were intended to make sure prisoners did not improperly mix personal and legal mail, which are supposed to be kept in separate bins, and to make sure they didn’t have any “incendiary” magazines or material that could pose a security threat.

The defense team for Abd al-Rahim al-Nashiri, the Guantanamo prisoner charged with orchestrating the attack on the USS Cole in 2000, faced a similar set of restrictions in November. A lawyer for al-Nashiri said they would also violate the attorney-client privilege and asked the military judge in that case to intervene. The judge directed prison staff to not read attorney letters to clients, but came before last week’s broader order from Woods.

There is no judge yet in the Sept. 11 case and so those attorneys cannot yet ask a court to intervene.

Rick Kammen, a civilian attorney for al-Nashiri, said that his defense team also has concerns about the proposed new rules but has not yet decided how to respond. He said the new changes underscore the argument among many that the cases should be tried in the established civilian federal courts rather than military tribunals, where the rules have evolved in recent years.

“The rules keep changing. The landscape keeps changing daily,” Kammen said.

Guantanamo leader signs order opposed by lawyers

http://hosted.ap.org/dynamic/storie...ME&TEMPLATE=DEFAULT&CTIME=2011-12-28-13-38-26

By BEN FOX
Associated Press
12/28/2011

SAN JUAN, Puerto Rico (AP) -- The commander of the Guantanamo Bay prison has signed an order that would require a security review of legal mail to prisoners facing war crimes charges, a spokeswoman said Wednesday, rejecting arguments the new rule would violate attorney-client privilege and undermine long-delayed tribunals for five men charged in the Sept. 11 attacks.

Rear Adm. David Woods considered the arguments of defense lawyers and made some modifications, said Navy Cmdr. Tamsen Reese, a spokeswoman for the detention center on the U.S. base in Cuba.

Critics said the changes were minor and did not address the central complaints.

Woods retained a provision that would require the creation of a "privilege team," which would include law enforcement or intelligence officials as well as Defense Department attorneys, to review legal communications between lawyers and their clients, according to a copy of the order obtained by The Associated Press.

In issuing the order, the commander is seeking to prevent prisoners from receiving prohibited material without placing the burden for deciding what is appropriate on guards or other detention center staff, Reese said.

"He's trying to strike a balance," she said in a telephone interview. "He's got responsibilities. He's got to keep security and good order and force protection. And he's got to allow proper procedures for legal meetings between defense counsel and detainees and here's the way we're going to do it."

The order directs members of the privilege team to preserve attorney-client privilege "to the fullest extent possible," and sets guidelines for when they can disclose information from legal mail to other officials such as when they encounter what they suspect as "unauthorized information."

Those limits do not go far enough to avoid violating attorney-client privilege or making the order legal, said Bryan Broyles, the deputy chief defense counsel for the military commissions.

"What they keep wanting to do is to have their intelligence employees promise not to tell anybody about our communications and say that's good enough," Broyles said. "And as a matter of law it's not."

Broyles and the chief defense counsel, Marine Corps. Col. Jeffrey Colwell, said they were still doing a line-by-line analysis of the signed order that it appears that no substantive changes were made.

"They certainly didn't take anything we said into account," Broyles said.

Lawyers representing the five prisoners facing war crimes charges for helping to plan and carry out the Sept. 11 attacks had sent a memo to Woods opposing the order and calling for substantial changes.

Their memo said the new rules would deprive the prisoners of their constitutional right to counsel and make it impossible for lawyers, because of their professional and military codes of professional conduct, to participate in their long-delayed war crimes tribunal.

The five prisoners accused of helping to organize the Sept. 11 case are expected to be arraigned at the base in 2012 in what would be the most high-profile U.S. war crimes tribunal since the World War II era. The five, including the self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed, are facing charges that include murder and could be sentenced to death if convicted.

They are represented by teams of civilian and military attorneys, all of whom have security clearances required to visit prisoners who are kept under such tight security that the location of their cells on the base is considered secret and everything they say is considered presumptively classified.

Reese said Woods, who took command of the base on Aug. 24, softened language in the order that apparently added restrictions on attorney visits to their clients. "The orders doesn't impede defense counsel from personally visiting or communicating with their clients, which was never the intent but some of the language may have led them to believe that that was going to be the case."

The order still limits legal mail to only letters from lawyers to their clients, barring supporting documents such as legal motions or articles about their case. Such material may be sent through standard mail but would also be subject to review.

Broyles said that the defense believes that, for now, these new rules would only apply to the five prisoners who have been accused of helping to plan and carry out the Sept. 11 attacks. That's because a military judge has already rejected the creation of a similar review process in the only other active case at Guantanamo, the trial of Abd al-Rahim al-Nashiri, who is charged with orchestrating the attack on the USS Cole in 2000.

"They will have to go back to the judge to have this process in place" in the Nashiri case, Broyles said. "I think that will be an interesting conversation."

There is no judge yet in the Sept. 11 case because the charges against the five prisoners accused of helping to plan and carry out the attacks, including self-proclaimed mastermind Khalid Sheikh Mohammed, have not been finalized. They are expected to be arraigned in 2012.

The U.S holds 171 prisoners at Guantanamo and officials have said several dozen could be tried before a military tribunal.

Terror on Trial
Legal proceedings against violent extremists are a crucial defense of our civilization, writes William Shawcross, whose father was a prosecutor at Nuremberg.

http://online.wsj.com/article/SB10001424052970203513604577140671297550142.html

Expect to hear a lot about Nuremberg in the months ahead. The war-crimes trials of leading Nazis, begun in that German city in 1945, will form an important subtext as we approach the trial of Khalid Sheikh Mohammed, the accused mastermind of 9/11, and his associates. The pretrial proceedings at Guantánamo may start as soon as March.

Since 9/11, America's attempt to balance justice and national security has drawn protests both at home and abroad. Some of the criticism has been fair, but much of it ignores the dilemmas that any administration would face in dealing forcefully with 21st-century terrorists who, unlike the defendants at Nuremberg, have not yet been defeated. Few things are harder for democracies than to render justice to enemies whose aims are both irrational and non-negotiable.

The trial of Khalid Sheikh Mohammed will be historic. It will address not just a group of thugs but the enduring human phenomenon of evil. Mutable and persistent, evil has not been discouraged by the progress of reason or the taming of nature. Evil reinvents itself in every age and is reinvigorated by mankind's inevitable immaturity. Like the fascist ideology that the democratic world fought in the 1940s, the dogma of al Qaeda (and of the extremist Shiite dictators of Iran) is despotic, anti-Christian, anti-Semitic and nihilist. Like the Nazis, they cannot be appeased.

On the campaign trail in 2008, Barack Obama invoked Nuremberg. He had studied the tribunal in law school and referred to it in the context of the Supreme Court decision in the case of Boumediene v. Bush, which gave Guantánamo detainees the right to challenge their detention in federal court. Mr. Obama praised the opinion and linked it to the respect for due process, which he said, Nuremberg had exemplified. "During the Nuremberg trials, part of what made us different was even after those Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court, and that taught the entire world about who we are."

To which the most appropriate response is—up to a point. The top Nazis captured in 1945 were indeed given "their day in court." But that court was a unique military tribunal, created specifically for the circumstances after V-E Day. The defendants were far better protected than they would have been in any Nazi court (or Soviet court, for that matter), but they certainly did not enjoy the rights of defendants in the U.S. The idea that top Nazis should have the same protections as those afforded to Americans by the U.S. Constitution never occurred to the jurists devising the rules for Nuremberg.

To some, Nuremberg will always be an example of "victors' justice." I believe that view is wrong and that the tribunal (where my father, Hartley Shawcross, was the chief British prosecutor) was a necessary and successful exercise of law. At Nuremberg, our civilization developed a vehicle to anathematize men imbued with evil.

Justice Robert Jackson, the chief U.S. prosecutor and the architect of Nuremberg, put it well when he spoke of the regime that the accused at Nuremberg had served: "Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive."

The scale and nature of the threats from fascism and Islamist extremism are different, but that same problem persists today. In trying both to prevent further atrocities by Islamist extremists, and to deliver justice to those detainees suspected of such crimes, President Obama has found himself, like President Bush before him, faced with decisions that test our ideals. He has been forced to shed many of his preconceptions.

On Sept. 30, 2011, drones high above Yemen targeted a car carrying Anwar al-Awlaki, a radical Islamic preacher—and an American citizen. A Hellfire missile killed Mr. Awlaki and another American jihadist travelling with him.

Mr. Obama said afterward that the successful attack, coming less than five months after the killing of Osama bin Laden by the U.S. Navy's SEAL Team Six, was "further proof al Qaeda and its affiliates will find no safe haven in Yemen or anywhere around the world."

The decision to use a drone to kill American citizens in Yemen was a remarkable turnaround for a politician who had criticized almost every aspect of the "war on terror" waged by his predecessor in the Oval Office. But by fall 2010, it did not come as such a surprise. By then Mr. Obama had also authorized military trials (which he once condemned) to take place in Guantánamo (which he had promised to close).

There is no question that Mr. Awlaki was a remarkably dangerous man. Born in New Mexico to Yemeni parents in 1971 and largely educated in the U.S., he spoke mellifluously and possessed a deep understanding of Western popular culture. His sermons were designed to encourage individual Muslims around the world to launch "lone wolf" attacks against all "infidels" and to persuade American Muslims to rise up against their government.

Over the Internet, Mr. Awlaki personally instructed Maj. Nidal Malik Hassan, the American Muslim soldier who murdered 13 of his colleagues and wounded 30 more in a rampage at Fort Hood in November 2009. He helped to train the so-called "underpants bomber," Farouk Abdulmutallab, who came close to blowing up a Northwest Airlines flight over Detroit on Christmas Day 2009.

In 2010, Mr. Awlaki started to groom a British Muslim, Rajib Karim, who worked for British Airways, and instructed him to place a bomb on a flight to the U.S. Mr. Karim was arrested before the plot went far. Later that year, Mr. Awlaki's group, al Qaeda in the Arabian Peninsula, managed to get two bombs, disguised as printer cartridges, onto cargo planes bound for U.S. They were discovered and defused en route.

By this time, the U.S. government had decided that it had enough evidence to designate Mr. Awlaki an active terrorist threat who could be targeted. As the administration argued, over the protests of human rights groups, Mr. Awlaki was playing an operational role as part of the enemy forces covered by the legislation authorizing the use of military force that Congress had passed immediately after 9/11. Mr. Awlaki had made no attempt to surrender, and the U.S. was not able to arrest him.

As for the idea that his citizenship should give him protection from attack, it is worth recalling that in the case of Nazi saboteurs arrested in the U.S. in 1942 (the case of Ex Parte Quirin), two of them were U.S. citizens. They were nonetheless convicted and sentenced to death. The Supreme Court ruled that the U.S. citizenship of "an enemy belligerent does not relieve him of the consequences of belligerency."

Since 9/11, drones have provided a vast revolution in warfare. They have multiplied, as missile platforms and observers, and their technology is still rapidly advancing. Soldiers can now launch drones from backpacks, and the Pentagon is experimenting with drones the size of dragonflies.

Such technological developments raise new questions about the relevance of the Geneva Conventions, whose interpretation has dominated the waging of the war on terror. P.W. Singer, a senior fellow at the Brookings Institution and an expert in robotic warfare, points out that the Conventions were last effectively updated in 1949, at a time when the 45-rpm vinyl record was a hot new invention. The old laws, he argues, are struggling to keep up with high-tech weapons "like the MQ-9 Reaper, which is being used to target a 21st-century insurgent who is intentionally violating those laws by hiding in a mosque or a civilian house."

Mr. Bush used drones sparingly to attack terrorism suspects. He is said to have feared the inevitable accusation of war crimes. By the time he left office, there had been just 44 drone strikes over five years, according to the New America Foundation, all of them in Pakistan. They are thought to have killed some 400 people.

After taking office in 2009, Mr. Obama swiftly expanded the use of drone attacks on suspected Islamist terrorists in Afghanistan and Pakistan, and then in Somalia and Yemen. Drone strikes in Pakistan grew from 33 in 2008, Mr. Bush's last year in office, to 53 in 2009. Altogether, there have been more than 240 drone attacks in Pakistan since the beginning of 2009, with a death toll of more than 1,300.

The remarkable thing about the president's reliance on drones is how little protest, until recently, it has aroused. Waterboarding may be deemed an abuse of a terrorism suspect's rights, but an attack by a Predator drone results (in the Vietnam-era phrase) in "termination with extreme prejudice."

Public acquiescence in these aerial killings demonstrates the way in which political and moral judgments can be driven by perceptions of personality and politics. But even Mr. Obama's honeymoon had to come to an end. His policy of killing suspects rather than detaining and interrogating them has come under increased scrutiny, and not just in the case of Mr. Awlaki.

John Bellinger, the former legal adviser to the State Department, argues that one of the Bush administration's biggest mistakes was neglecting to secure international support for its novel counterterrorism policies. Unless Obama is careful, Mr. Bellinger says, his drone program could "become as internationally maligned as Guantánamo."

As a senator and a presidential candidate, Barack Obama criticized almost all of Mr. Bush's decisions in the "war on terror." Two days after his inauguration in January 2009, he ordered Guantánamo shut within a year, and that November his attorney general, Eric Holder, insisted that the main 9/11 suspects at Guantánamo, including Khalid Sheikh Mohammed, would be put on trial in federal court in Manhattan.

Since discovering the complexities of fighting Islamist terror, Mr. Obama has abandoned many of his earlier positions. In March 2011, he signed an executive order allowing terrorist detainees to be held indefinitely at Guantánamo. He also agreed that the base's recently constructed courthouse should be the venue for the military tribunals that he had set out never to allow there.

Brig. Gen. Mark Martins is to perform the task that Justice Robert Jackson did at Nuremberg. He was appointed last June by the secretary of defense to be the chief prosecutor of the military commissions, which were reformed by act of Congress in 2009.

This was, by all accounts, an inspired choice. A former infantryman who has thought deeply about the history of military tribunals, Gen. Martins recently won widespread praise for his work as commander of the Rule of Law Field Force in Afghanistan.

In some ways, his task is even more daunting than that of his illustrious predecessor in 1945. Jack Goldsmith, a former Bush-administration lawyer and the author of "The Terror Presidency," says that Gen. Martins faces a much more difficult task in legitimating the tribunals than Justice Jackson did at Nuremberg.

For his part, Gen. Martins pointed out recently, in a speech to the American Bar Association, that the military courts, as now reformed, "incorporate all of those fundamental guarantees of a fair and just trial that are demanded by our values." Anyone accused in them enjoys far more protections than the Nazi defendants had in 1945—indeed, more than in many respected criminal justice systems around the world. Anyone convicted also will have the ultimate safeguard under American law—the right of appeal, all the way to the Supreme Court.

Why not, then, just use the federal courts to try terrorism suspects? They can be used in many cases, Gen. Martins says, but military tribunals are more appropriate, in certain cases, for the trial of non-U.S. citizens who fight in no uniform and without obeying the rules of war—"unprivileged belligerents."

While giving great protection to defendants, the rules of military tribunals also accord more protection to the government those defendants are accused of seeking to destroy. The rules prohibit the use of statements obtained as a result of torture, or of cruel, inhuman or degrading treatment, but they take into account the challenges of intelligence-gathering in wartime operations overseas, do not require soldiers to give Miranda warnings to captured enemy forces, and allow an occasional hearsay statement, when it is the best available evidence from a now unavailable witness and the interests of justice are best served by considering it.

Referring to Nuremberg, Gen. Martins says that the new military tribunals cannot "make decisions to please the public or the Congress. Like our forebears, we are compelled to step back from 'victor's justice.' This is what the rule of law is about. Sometimes various people or interests will not be happy. But in the end we can only do the right as we see the right…and trust that our efforts will stand the test of time."

All wars involve choices between lesser evils. In a 1973 essay, the philosopher Michael Walzer described the politician who decides that he has to authorize torture to save lives. "His choices are hard," Mr. Walzer wrote, "and he pays a price not only while making them but forever after."

The Bush administration's early post-9/11 decisions on Guantánamo and "enhanced interrogation" of some detainees (three were waterboarded) are believed to have provided life-saving intelligence, but each proved costly to the reputation of the U.S. Mr. Obama's decision to kill many terrorism suspects rather than interrogate them has certainly disrupted plots and saved lives. But it carries similar costs.

This continuing crisis is not of America's making. It stems in large part from the struggle within the Muslim world for the soul of Islam, of which the most brutal manifestation is the pitiless campaign of mass murder waged across the world by al Qaeda and its associates, most often against fellow Muslims.

Since the beginning of the 20th century, America's commitment and sacrifices have been essential to the world's ability to resist the forces of nihilistic aggression. That was certainly true in the war against fascism, and it is still true today. Like Mr. Bush, Mr. Obama has had to learn the hard way that, as the theologian Reinhold Niebuhr warned, "we take and must continue to take morally hazardous actions to preserve our civilization."

South Florida 9/11 Families Meet With Prosecutors Before Guantanamo Cases
Prosecutors are gathering evidence and finding out which families want to testify

http://www.nbcmiami.com/news/local/...-Before-Guantanamo-Cases-Begin-137216078.html

1/13/2012

A decade on after the Sept. 11 terrorist attacks, South Florida families who lost loved ones on that day had an opportunity to tell prosecutors what they want to see in the upcoming court cases of five alleged 9/11 conspirators Thursday.

Retired New York City policeman John Napolitano was one of the 9/11 family members who spent the day at an out-of-the-way VFW hall in West Palm Beach.

Not a day goes by without Napolitano thinking of his son, firefighter Lt. John P. Napolitano, who lost his life in the World Trade Center’s north tower.

“They were murdered. There is no sanitizing it,” the firefighter’s father said. “The Taliban, al-Qaida, terrorists, they’re thugs. They’re thugs and murderers.”

Federal prosecutors are building their cases against the alleged architect of the attacks – Khalid Sheikh Mohammed – and four other detainees being held at Guantanamo Bay. The prosecutors asked the South Florida families to come to West Palm Beach as they search for evidence and see who wants to testify.

“Looking at them face to face with them, for me, is not the important issue. The important issue is that justice be done,” Napolitano said.

The trials will take place at Guantanamo before a military commission, and the five men are formally charged with violating the laws of war.

Debra Strickland’s husband, Larry, was an Army sergeant major who died at the Pentagon.

She said she is not sure how she would handle coming face to face with those charged if she is selected to testify – but said that “of course” she wants to.

“A sense of closure” motivates her to testify, she said. “You know the individuals that were responsible for this, they still have an opportunity to speak every day.”

Family members said Thursday they were not given an exact timeline on when the trials will begin, but they appear to be months away. The prosecutors will need to decide how many families should take the stand. Prosecutors did not respond to a request for details on their efforts.

Now, the families go back to exercising something they have perfected over the years – patience.

Lawyer in 9/11 Trials Cries Foul Over Correspondence Rule as Death Penalty Decision Looms

http://nation.foxnews.com/september-11/2012/01/14/911-trials-hit-another-roadblock

By Catherine Herridge
Published January 14, 2012

The trial of 9/11 suspects has hit another roadblock.

A defense lawyer at the Guantanamo Bay military courts says new restrictions imposed by the detention camp commander in Cuba are forcing him to "violate his ethical obligations" as a military officer, according to new federal court filings obtained by Fox News.

The motion, filed in the U.S. Court of Appeals for the District of Columbia by Navy Commander Walter B. Ruiz, states that an order from Rear Adm. David Woods to systematically inspect all correspondence between the defense lawyers and the 9/11 suspects violates one of the most basic legal tenets -- attorney-client privilege.

Military lawyers blast Guantanamo mail search as violating rights, ethics

http://www.star-telegram.com/2012/01/15/3661494/military-lawyers-blast-guantanamo.html#storylink=cpy

By CAROL ROSENBERG
McClatchy Newspapers
Posted Sunday, Jan. 15, 2012

WASHINGTON — Military lawyers for Guantanamo detainees who could someday be put to death are accusing the new prison commander of censoring protected attorney-client documents, raising a new legal controversy that spotlights ongoing concern about the fairness of possible military trials.

The Obama administration reformed the military commissions in consultation with Congress to give accused terrorists greater rights. But an order by the new prison commander that all attorney-client mail be reviewed for contraband, including information that the commander argues the detainees shouldn't be allowed to have, has attorneys crying foul.

The Pentagon's chief defense counsel for military commissions, Marine Col. Jeffrey Colwell, has instructed war court defense lawyers to no longer send their clients privileged mail, saying the prison camp's policy of inspecting attorney-client mail violates the lawyers' ethical obligations. For a week now, defense lawyers have honored his instruction.

Meanwhile, a Navy defense lawyer, Cmdr. Walter Ruiz, has filed suit before the U.S. Court of Appeals here, accusing the prison of violating the Sixth Amendment rights to a fair trial of a Saudi detainee accused of helping to move money that financed the Sept. 11, 2001, terrorist attacks.

At Guantanamo, the chief military commission judge, Army Col. James Pohl, is being asked to referee the ethical question at a hearing that opens Tuesday for accused al-Qaida bomber Abd al Rahim al Nashiri. Nashiri's lawyers argue that the prison camp's policy is at odds with Congress' mandate to give accused war criminals the assistance of counsel.

At issue is what information a lawyer may exchange with his captive client.

Defense lawyers argue that their material should be scanned only for physical contraband - anything that might be used to harm someone or something. Or as Pohl put it at a hearing in November, they should be looking for "staples, pins, baseball bats" versus "content."

But the prison commander, Rear Adm. David B. Woods, wrote lawyers last year that his staff would study and sort materials for "escape plots" or subjects of a "sexual nature."

Then the prison camps went further, the defense lawyers allege. At one point, prison camp lawyers refused to allow an official document from a senior Pentagon official, retired Vice Adm. Bruce MacDonald, to go to alleged 9/11financier Mustafa al Hawsawi as a privileged communication. In it, MacDonald approved Hawsawi's choice of a "mitigation expert" for his future capital murder trial.

In another instance, prison camp lawyers blocked a pleading by James Connell, a Pentagon-approved lawyer for accused 9/11 plotter Ammar al Baluchi, saying "Baluchi wasn't entitled to get his lawyer's draft brief as legal mail," Ruiz said.

Navy Cmdr Tamsen Reese, the prison camp's spokeswoman, wouldn't comment on either of those episodes or discuss the detention center's latest legal mail inspection policy, but said in an email that the issue could come up at this week's Nashiri hearing. Pohl ruled in November that Guantanamo personnel could not look at mail between Nashiri and his attorneys as long as it was properly marked.

"The problem is they are reading privileged communications and he is censoring what he believes the client should get," Ruiz said of Woods. "Our ethical rules are very clear: Attorneys cannot disclose privileged matters unless it is to avoid imminent harm or danger to a person or persons or in response to a lawful order, such as a judge's."

He has asked the federal courts to intervene, setting up yet another Guantanamo conflict that could reach the U.S. Supreme Court. The prison camps commander, he said, is "chilling the attorney-client relationship and the accused's ability to have access to the courts."

Woods, a one-star admiral, became the 11th commander of the detention center in August, two months before the Pentagon formally charged Nashiri with killing 17 American sailors as a behind-the-scenes planner of al-Qaida's October 2000 bombing of the USS Cole off Yemen.

Nashiri's case is already complicated by the way interrogators treated him when he was held in a clandestine CIA prison. A congressional inquiry found that Nashiri, a former millionaire from Mecca in Saudi Arabia, was water-boarded and interrogated as a loaded gun and a revving drill were held near his head.

Nashiri, who has been imprisoned at Guantanamo for five years, is being held in a secret part of the camp where, according to war court testimony, Woods had his staff do a surprise search of the captives' legal materials in October to see what earlier prison staff had allowed in.

In a hearing in November, Nashiri's attorneys objected to the search, and Pohl sided with them. But the policy that the prison camps drafted in response to Pohl's ruling is too broad, the defense attorneys argue, allowing Guantanamo personnel to read documents and then decide whether they agree with the lawyer that the documents should be considered privilege.

The defense lawyers' refusal to send mail to their clients applies to about 30 detainees who could some day face a war-crimes tribunal. The remainder of the 171 Guantanamo captives have either been cleared for release or will be held indefinitely with no prospect of trial because of problems with the evidence against them.http://www.star-telegram.com/2012/01/15/3661494/military-lawyers-blast-guantanamo.html#storylink=cpy

Another Guantanamo taint
A draft order likely violates the right to counsel and threatens to jeopardize the progress made in reversing Gitmo's legacy as a 'legal black hole.'

http://www.latimes.com/news/opinion/la-oe-raustiala-gitmo-20120118,0,7059609.story?track=rss

By Kal Raustiala
January 18, 2012

Of all the hangovers from the George W. Bush years, the thorniest may be what to do about the U.S. military prison camp at Guantanamo Bay, Cuba. There are still 171 detainees at Guantanamo and little consensus on what to do with them. Last spring, President Obama announced the resumption of military trials for some of those charged with participating in the 9/11 attacks. These trials, known as military commissions, have been stalled for years by legal challenges. Recently, the official in charge of the Guantanamo prison, Rear Adm. David Woods, issued a draft order that compounds these challenges. The order requires all correspondence between the accused and their appointed military lawyers to be reviewed by federal officials.

The proposed order is a mistake, one that threatens to jeopardize the progress made in reversing Guantanamo's tainted legacy as a legal black hole. It likely violates the 6th Amendment's guarantee of the right to counsel, which has long been understood to permit lawyers to communicate confidentially with their clients.

The order is not just bad law. It is also bad policy that could tarnish the most high-profile military trials held by our nation since World War II.

What legal rights the Guantanamo detainees possess is hotly contested. The Bush administration long argued that Guantanamo was Cuban, not American, territory and therefore the detainees had no constitutional rights. That view was repudiated by the U.S. Supreme Court in 2008 in Boumediene vs. Bush. In deciding that at least some constitutional rights extended to those held at Guantanamo, the court recognized the highly unusual nature of the base.

Guantanamo has been under American control since U.S. troops prevailed in the Spanish-American War of 1898. Cuba has no effective control over the base, which is governed by a lease that cannot be changed without U.S. consent and that accords the U.S. "complete jurisdiction and control." This history led the Supreme Court to declare that whatever the legal formalities, it is an "obvious and uncontested fact" that the United States is the de facto sovereign there.

In short, Guantanamo Bay is technically Cuba. But as a practical matter, it is just as much a part of the United States as Tampa Bay.

Boumediene did not involve the 6th Amendment. And the Supreme Court has never expressly declared that the 6th Amendment applies to foreigners tried abroad. In the closest case on point — involving Nazi saboteurs captured during World War II on the beaches of Long Island and Florida and tried in the U.S. — the court held that they lacked a 6th Amendment right to trial by jury because the laws of war did not require one for unlawful combatants. But the 1942 decision pointedly said nothing about the other aspects of the amendment, including the right to counsel.

In light of these precedents, it is not at all implausible that the right to counsel extends to those at Guantanamo. The Supreme Court made it clear in Boumediene that it was deeply troubled by the idea that the federal government could evade constitutional restraints simply by moving prisons offshore. That reasoning applies no less readily to offshore trials.

Woods' order does not simply raise legal concerns, however. By violating the sanctity of attorney-client privilege, it jeopardizes the perception of American military commissions as fair and just, a perception that is crucial if these trials are to succeed.

To see why, consider the fundamental purpose of such trials. Why not simply imprison the suspected terrorists in perpetuity without trial? The chief reason, dating to the landmark Nuremberg tribunal, is the belief that a just and fair trial of even our worst enemies is the best vindication of our nation's values, and the best way to ensure that cycles of revenge are tamped down, individuals are held accountable and the truth emerges.

War-crimes trials have long been tarred by cries of "victor's justice." It is only through scrupulous adherence to fair, neutral and time-honored procedures that we can forcefully refute such criticism.

To some critics, of course, no amount of due process can save the military commissions. They see the results as foreordained and the legal process as so much window-dressing. But the commissions, though rarely employed in our history, grow out of a long and honorable tradition of military justice. They can and ought to be fair proceedings. If they are perceived as unfair, they will jeopardize the entire point of war-crimes trials — which is, in the famous words of Justice Robert Jackson, the American prosecutor at Nuremberg, to "stay the hand of vengeance" and submit "captive enemies to the judgment of the law."

That is why the defense lawyers appointed to represent the detainees — American service members who proudly wear our uniform — have vigorously protested the effort to intrude on attorney-client privilege. They recognize an important truth. The U.S., and our long struggle against terrorist violence, will be the loser if the deck is stacked against the Guantanamo defendants.

Gitmo defends monitoring of mail

http://www.denverpost.com/nationworld/ci_19765177

Posted: 01/18/2012 01:00:00 AM MST
Denver Post Wire Services

GUANTANAMO BAY NAVY BASE, Cuba — In unprecedented war court testimony, the prison camps' commander on Tuesday defended a three-tier system of classifying lawyers' mail to alleged terrorists that sparked a defense lawyer's boycott and is threatening to stall future war-crimes trials.

It was the first time the camps' top commander testified at a Guantanamo military commission. Rear Adm. David B. Woods said he had a team of Defense Department contractors examining confidential, privileged attorney-client mail for "safety, force protection and good order."

Al-Qaeda magazine found in Guantanamo jail

http://www.google.com/hostednews/af...ocId=CNG.f02a09f392cafaaab8362a7efd066fb0.511

By Chantal Valery (AFP) – 26 minutes ago

US NAVAL BASE AT GUANTANAMO BAY, Cuba — An Al-Qaeda magazine was discovered after being smuggled into Guantanamo prison, a senior US official said Wednesday amid a debate on new rules on mail inspections.

Prison staff found an English-language copy of "Inspire" magazine which used to include such articles as how to make bombs, deputy military prosecutor Andrea Lockhart told a military tribunal hearing.

She did not specify how the magazine, which is published by the Al-Qaeda in the Arabian Peninsula, was smuggled into the remote US base in southern Cuba nor whether it was discovered during a search of the cells.

But Lockhart said new rules on inspecting the mail between lawyers and detainees were brought in on December 27 after its discovery.

"That was the genesis for the baseline review... that it wasn't working. And there was material that was getting in, like Inspire magazine that should not have been getting in," she said.

The new rules have been hotly contested by lawyers as a violation of their clients rights.

Among the 171 men still held in Guantanamo, some have languished there since the jail was opened 10 years ago this month to house "enemy combatants" detained in the US "war on terror" launched after the 9/11 attacks.

The discussion on the new mail rules took up four hours of debate over two days of a preliminary hearing to fix a trial date for Saudi-born Abd al-Rahim al-Nashiri accused of masterminding the USS Cole bombing in 2000 in the Yemeni port of Aden.

US military officials have ordered that the Saudi man's letters and email correspondence be systematically reviewed, which his attorneys have challenged.

It is a "violation of the attorney-client privilege," said Stephen Reyes, one of Nashiri's military defense lawyers, adding that "at the end of the day it's got to stop."

Lockhart shot back that there was a need to "balance the needs of defense and the needs to protect the legitimate government interests."

Judge James Pohl, responding to the concerns, gave the defense and prosecution seven days to offer written arguments.

"There's got to be a new order in a couple of weeks," he said, calling both sides to a new hearing in April. The trial itself is unlikely to take place for several months.

Nashiri is the first defendant to be up for trial since President Barack Obama reversed course and ordered military trials to resume at the US naval base in Guantanamo, Cuba.

The 47-year-old Nashiri, wearing his white prison uniform but without handcuffs, listened attentively to a translation of the discussions.

Nashiri is accused in the plot to bomb USS Cole, killing 17 sailors and wounding 40 more in Yemen.

He is also accused of involvement in an attempted attack against another American warship in Aden, the USS The Sullivans, in January 2000.

US military prosecutors also accuse Nashiri of planning an attack on a French civilian oil tanker MV Limburg in the Gulf of Aden in 2002 that left one Bulgarian crew member dead and caused a 90,000 barrel oil spill.

Defenders seek 9/11 trial delay, blame Guantánamo legal mail dispute
This time, Pentagon defense lawyers are citing a new Guantánamo prison camp controversy involving inspection of confidential mail in their request for a delay in the Sept. 11 mass murder case.

http://www.miamiherald.com/2012/02/02/2621667/defenders-seek-another-911-trial.html

By CAROL ROSENBERG
[email protected]

Lawyers for the 9/11 plot suspects on Thursday sought to delay until this summer filing memos on why the terror tribunal should not go forward as a capital case.

If a senior Pentagon official agrees, the soonest the alleged mastermind Khalid Sheik Mohammed and his accused four co-conspirators would get initial appearances at Guantánamo’s Camp Justice would be around the next Sept. 11 anniversary.

At issue is an ethical dispute over how the Guantánamo prison commander is reviewing confidential communications between Pentagon lawyers and their captive clients. Defense lawyers stopped sending so-called privileged mail to their clients late last year after the Chief Defense Counsel, Marine Col. Jeffrey Colwell, declared the policy of reviewing mail unethical.

Colwell said Thursday that all five 9/11 defense teams were seeking the delay because the controversial camp mail policy “complicated the attorneys’ ability to prepare.”

Prosecutors are now working with the camps commander, Rear Adm. David B. Woods, to devise a new mail system that’s blessed by the chief war court judge. No solution is expected before April.

The attorney for Ramzi bin al Shibh, a Yemeni accused of orchestrating part of the mass murder from Hamburg, Germany, asked for a delay until August. Another lawyer asked for a four-month delay on behalf of Mustafa al Hawsawi, who is accused of helping to move some of the money that financed the Sept. 11 hijackers’ travels.

A Pentagon spokesman, David Oten, said the request for an extension was under consideration.

The Obama administration cleared the way for a 9/11 tribunal in April. Prosecutors swore out death-penalty charges May 31.

Since then, the Pentagon has been assembling defense teams. .

The teams are supposed to write a senior Pentagon official overseeing the war court, retired Vice Adm. Bruce MacDonald, by Monday on why the case shouldn’t go forward.

A Navy war-crimes prosecutor defended the new mail policy at a hearing last month by disclosing that a copy of al Qaida’s now defunct Inspire magazine had reached the detention center. Prison-camp commanders won’t discuss when or how the alleged security breach happened in the Pentagon’s showcase prison, which has a staff of 1,875 U.S. forces and civilians and 171 detainees.

Sept. 11 Trial At Guantanamo May Face New Delay

http://www.npr.org/templates/story/story.php?storyId=146313463

by The Associated Press
SAN JUAN, Puerto Rico February 2, 2012, 05:25 pm ET

SAN JUAN, Puerto Rico (AP) — Lawyers for at least two Guantanamo Bay prisoners accused of planning the Sept. 11 attack asked the Pentagon on Thursday to extend a deadline for pretrial motions, which could again delay a case that has been stalled by political and legal disputes for years.

The attorneys for Ramzi Binalshibh and Mustafa Ahmad al-Hawsawi sent letters requesting the extension to the Pentagon legal official who oversees the war crimes tribunals at the U.S. base in Cuba but did not receive an immediate response.

Navy Cmdr. Walter Ruiz, the lawyer appointed to represent al-Hawsawi, said it was likely that extensions also will be sought by attorneys for other prisoners accused in the attack. The U.S. has charged five prisoners in all, including the self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed.

Pentagon spokesman David Oten said the requests for extensions were under consideration.

The lawyers are seeking more time to prepare legal motions addressing whether the five prisoners should face the death penalty for charges that include murder. The Pentagon's Convening Authority is to consider those motions before finalizing the charges and arraigning the men before a tribunal known as a military commission.

Once charges are finalized, or "referred to commission" in the language of the Pentagon, the military has 30 days to arraign the prisoners at the base.

In the war crimes case against a Guantanamo prisoner accused of orchestrating the attack on the USS Cole in 2000, the Convening Authority, Bruce MacDonald, took about two months to review the defense team's argument against the death penalty before referring it to a commission as a capital case. It was expected to take at least that long in the Sept. 11 case, but observers had expected the arraignment to happen as early as spring at Guantanamo.

The case has long been plagued by delays. Their first arraignment was held in June 2008 and the case began moving forward slowly when it was halted by President Barack Obama, who wanted to close the Guantanamo prison and try the men in civilian court. That effort was rebuffed by Congress, and the administration moved the case back to the military's war crimes tribunal at Guantanamo.

Ruiz is seeking an extension of four months to submit his motion, arguing that new restrictions on legal mail that can be sent to prisoners at Guantanamo, and his pending challenge to those rules in federal court, have interfered with his ability to finish a submission that is due Monday.

A lawyer for Binalshibh wants a six-month extension because of the mail restrictions and because of delays getting security clearances for members of the legal team.

Copies of both letters were obtained by The Associated Press.

The dispute over legal mail at the prison has been going on for months. The commander of the detention center, Navy Rear Adm. David Woods, issued a directive in December that requires legal mail to undergo a security review to ensure prisoners are not receiving prohibited materials, such as top-secret information or objects that might be fashioned into weapons.

Defense lawyers say they cannot abide by the rule without violating military and civilian codes of professional ethics that bar them from disclosing any information about their clients to a third party unless specifically ordered to do so by a court.

The chief defense counsel for the military commissions issued guidelines to the dozens of attorneys who work in the commissions that they should not follow the order and Ruiz says his efforts to work with his clients and prepare motions has been thwarted.

"Mr. Hawsawi is being deprived of his right to counsel at a critical stage of the proceedings," Ruiz wrote to the Convening Authority.

Pentagon won’t slow 9/11 death penalty filings
A senior Pentagon official told defense lawyers to write him by Monday on why the Sept. 11 mass murder file should not go forward as a death-penalty case.

http://www.miamiherald.com/2012/02/03/2623407/pentagon-wont-slow-911-death-penalty.html

By CAROL ROSENBERG
[email protected]

A senior Pentagon official on Friday refused to delay a pre-arraignment phase in the prosecution of five Guantánamo captives accused of conspiring in the Sept. 11 attacks.

Defense lawyers had asked to delay at least until this summer the process of filing memorandum on why the 9/11 trial should not go forward as a capital case.

They cited an ongoing dispute over the prison camps handling of privileged attorney-client mail, now being addressed in several courts, as well as delays by some defense lawyers in meeting with their alleged terrorist clients.

But the Pentagon official, retired Vice Adm. Bruce MacDonald, wrote 9/11 defense lawyers on Friday that Monday was still the deadline to argue in writing why life imprisonment — not military execution — should be the maximum possible penalty in the future tribunals of confessed 9/11 mastermind Khalid Sheik Mohammed and four other alleged conspirators.

Under that timetable, the Sept. 11 accused could be brought before a judge for arraignment at Guantánamo’s Camp Justice as early as March.

In the case of Ramzi bin al Shibh, who allegedly put together the German hijackers’ cell, his military lawyer has argued the Yemeni was likely not mentally fit to stand trial because Guantánamo medical staff had him on psychotropic drugs. His civilian lawyer, Buffalo attorney James P. Harrington, said he had no time to make any form of a “mitigation argument” before Monday’s deadline.

MacDonald approved Harrington’s appointment in July. But U.S. intelligence agencies didn’t grant him permission to meet the former CIA captive until December.

“I only met my client two weeks ago,” Harrington told The Miami Herald. “I just got a security clearance; there is no way we can do it.”

MacDonald made clear in his rejection of the pleas for delay that the law does not require him to consider defense lawyers’ arguments against military execution as the ultimate penalty in a Guantánamo military commission case.

“Considering the seriousness of the charges and the potential penalty, I concluded it was appropriate to do so in this case, but only if the defense could submit such matters in a timely manner,” he wrote Navy Cmdr. Walter Ruiz, defending Saudi captive Mustafa al Hawsawi. “You were given more than adequate time in which to prepare matters in mitigation for my consideration.”

Pentagon refuses extension for Guantanamo Sept. 11 trial

http://www.usatoday.com/news/world/story/2012-02-03/guantanamo-trial-sept-11/52952554/1

The Associated Press
2/3/2012

SAN JUAN, Puerto Rico – A Pentagon legal official refused Friday to extend an important deadline for defense lawyers for the five Guantanamo Bay prisoners charged in the Sept. 11 attack, a decision that means their highly anticipated arraignment may now occur within months.

Bruce MacDonald, the Pentagon official who oversees the war crimes trials at the U.S. base in Cuba, refused separate requests for extensions from the lawyers for all five prisoners, including Khalid Sheikh Mohammed, the self-proclaimed mastermind of the attacks.

The lawyers had asked for extensions ranging from three months to a year to file motions arguing against capital charges that would make the men eligible for the death penalty if convicted. These are the final motions before MacDonald sends the long-stalled case to a military tribunal for trial, and the decision means an arraignment may take place at Guantanamo as early as this spring.

The Pentagon-appointed defense lawyers said they needed more time because of delays getting security clearances and a dispute over new rules on legal mail that they say have prevented them from communicating with their clients. MacDonald said he had already granted extensions and Monday's deadline for filing the motions would not be changed.

"You were given more than adequate time in which to prepare matters in mitigation for my consideration," he wrote to Navy Cmdr. Walter Ruiz, who represents Mustafa Ahmad al-Hawsawi, a Saudi accused of helping supply the Sept. 11 hijackers with money, Western clothes and credit cards.

Ruiz said he and the other defense lawyers are considering various options, including asking MacDonald to reconsider, but he conceded they have few avenues to address what they say is another example of a tribunal system that favors the prosecution.

He said that he has not had access to a translator for some meetings with his client, who speaks limited English, and that it is taking too long to get security clearances for defense experts so they can see evidence in a trial that will rely on large amounts of classified evidence. The obstacles, he said, contradict recent statements from military officials that changes in the tribunals have made them more like federal courts.

"The chief prosecutor wants to go out there and say this is a fair process — 'We have transparency. We've brought this back in line with federal procedures.' It's nonsense," Ruiz said. "For us this is just business as usual."

The Sept. 11 case has long been plagued by delays. The defendants' first arraignment was held in June 2008 and the case began moving forward slowly when it was halted by President Barack Obama, who wanted to close the Guantanamo prison and try the men in civilian court. That effort was rebuffed by Congress, and the administration moved the case back to the military's war crimes tribunal at Guantanamo.

The charges against the five allege they were responsible for planning the attacks that sent hijacked commercial airliners slamming into New York's World Trade Center, the Pentagon and a field in Pennsylvania, killing nearly 3,000 people.

What's next is for MacDonald, a retired admiral, to give his final approval to the charges so they can be set for trial by a tribunal known as a commission. At that point, the military will have 30 days to arraign them before a judge.

Suit challenges new Guantánamo mail rule

http://www.miamiherald.com/2012/02/09/2633649/suit-challenges-new-guantanamo.html

2/9/2012

SAN JUAN, Puerto Rico (AP) – A lawyer for a Guantánamo prisoner charged in the Sept. 11 attack has filed suit against the prison commander, arguing a new rule subjecting legal mail to a security review is unconstitutional and amounts to illegal “intelligence monitoring” of a U.S. citizen.

James Connell said Thursday that his suit filed in federal court in Washington D.C. is broader than a previous legal challenge to the rule brought by the lawyer for a separate defendant in the Sept. 11 case.

The suit filed by Connell, which was cleared for public release Wednesday after a security review that redacted some details about his client and his confinement at the U.S. base in Cuba, asks a judge to strike down the rule as a violation of the rights of defense lawyers.

The Washington-based Connell said the rule not only violates attorney-client privilege but his rights as a citizen to communicate in private with a prisoner.

“The Supreme Court has said there is a reasonable expectation of privacy in a letter when you mail it from one person to another and there have to be certain requirements before the government can violate that,” he said.

Connell added that it is also a problem that the new policy requires legal mail to prisoners facing war crimes trial be reviewed by a security team that includes intelligence officers. That is a kind of monitoring of U.S. citizens – the lawyers – that can’t be done except under limited circumstances, he said.

“The intelligence community should not be reading my mail without going through the strict requirements of U.S. law,” Connell said.

Connell is a civilian attorney who was appointed by the Pentagon to represent Ali Abd al-Aziz Ali, also known as Ammar Al-Baluchi, an alleged al-Qaida lieutenant from Pakistan who has been charged with war crimes for allegedly helping nine of the Sept. 11 hijackers travel to the United States and sending them money for expenses and flight training. He has been in U.S. custody since April 2003 and at Guantánamo since September 2006.

A Pentagon official is deciding whether the charges warrant it being a capital case that would make him eligible for the death penalty if convicted. He is expected to be arraigned with four other Guantánamo prisoners charged in the Sept. 11 attack later this year.

Connell’s suit names the prison commander, Rear Adm. David Woods, who adopted the new rule on legal mail on Dec. 27 to ensure prisoners are not receiving prohibited materials, such as top-secret information or objects that might be fashioned into weapons.

A Pentagon spokesman, Army Lt. Col. Todd Breasseale, said the military would not comment on the suit. But officials have defended the rule as a necessary security step, denying it violates attorney-client privilege and makes it impossible to ethically represent the defendants.

In a letter earlier this month to the president of the American Bar Association addressing concerns about the rule, the commander of U.S. Southern Command, Air Force Gen. Douglas Fraser, said the creation of a review team to screen the mail reflects the military’s goal of trying to balance the “legitimate and important” need for detainees to be able to communicate with their lawyers with “national security and physical security concerns at Guantánamo.”

Guantanamo plea deal 'could speed 9/11 trials'

http://www.google.com/hostednews/af...ocId=CNG.2c0bb64ff049f2ece081f320360f3722.311

By Chantal Valery (AFP) – 1 hour ago

US NAVAL BASE AT GUANTANAMO BAY, Cuba — A plea deal struck between US military prosecutors and a Pakistani detainee at Guantanamo Bay will likely speed the stalled trials of September 11 suspects, experts say.

Majid Khan, 32, who has spent the last nine years behind bars, was to plead guilty on Wednesday to a raft of charges connected to his role in alleged terror plots hatched by accused September 11 mastermind Khalid Sheikh Mohammed.

In exchange for a sentence of 25 years, Khan -- who had faced life in prison -- will testify against other "high value" detainees, including Mohammed and four others alleged to have taken part in the 2001 attacks.

Many of the terms of the plea agreement remain classified, and the Washington Post reported that the military plans to delay Khan's sentencing for four years to ensure he complies with the agreement.

"It's part of a strategy of building more solid cases against the handful of defendants that the government plans to try before the commissions," said Jonathan Hafetz, a lawyer who has represented other Guantanamo detainees.

More than 10 years after the September 11 attacks, Mohammed and four co-defendants accused of plotting them are still awaiting trial at the prison, part of a US naval base in Cuba.

Since the special military tribunals were authorized to try "enemy combatants" during the administration of president George W. Bush, six prisoners have been brought before the tribunals, with four pleading guilty.

Colonel Morris Davis, a former chief military prosecutor, has noted that more Guantanamo detainees had died since the US-run prison was established in 2002 than have been tried before the tribunals.

Khan is accused of working under Mohammed's direction to plan explosions of fuel tanks at US gasoline stations and to deliver funds for a bomb attack at a Marriott hotel in Jakarta, Indonesia, that killed 11 people in August 2003.

"If Khan provides information on KSM and others, as has been suggested was part of the deal, it will no doubt speed up the prosecutions," said Karen Greenberg, a terrorism expert at Fordham Law School, referring to Mohammed, who had been scheduled to be arraigned earlier this month.

"If Khan does provide information on KSM and others... it will break through the barriers presented by evidence obtained through torture, as this information will be presented in the present time and in a legal proceeding."

The agreement with Khan is the first plea bargain among 14 Guantanamo detainees the US military classifies as "high value."

US President Barack Obama -- criticized for failing to live up to his promise to shut down Guantanamo's prison by 2010 -- could benefit from the speedy prosecutions as he seeks a new term in November elections.

Over the years, 779 inmates have been detained at Guantanamo, most without charge or trial. Most have been transferred to their home countries or third countries in recent years and released.

Today, 171 people are still languishing there in limbo, including 89 detainees who have been cleared for release but are still in custody, thanks to a law passed by the US Congress.

For the other detainees who remain, pleading guilty may be the only way to guarantee that they one day leave the facility.

"The irony is that if you're charged with a crime and make a plea deal, you know you'll be released someday and have some idea when. You have an end-point," says David Remes, who has represented several detainees.

"But if you're not accused of a crime, you don't know whether you'll ever be released, much less when. That may be the crueler fate. The system is upside-down."

Khan was imprisoned in a secret CIA jail for three years before being transferred to Guantanamo in 2006.

He could be asked to testify in the trial of Abd al-Rahim al-Nashiri, the alleged Saudi mastermind of the 2000 attack on the USS Cole in Yemen's port of Aden, which killed 17 sailors and wounded another 40.

Nashiri's lawyer, Richard Kammen, said he's not surprised Khan has agreed to the plea bargain.

"Given the essentially lawless conditions of Guantanamo and the military commissions, many people would say or do anything to have a chance at release," he said.

9/11 mastermind set to face US military court
Khalid Shaikh Mohammad could soon be back in court for the much-awaited 'trial of the century'

http://gulfnews.com/news/world/usa/9-11-mastermind-set-to-face-us-military-court-1.992797

AFP
Published: 08:55 March 11, 2012

WASHINGTON: Nine years after his arrest in Pakistan, self-proclaimed 9/11 mastermind Khalid Shaikh Mohammad could soon be back in court for the much-awaited "trial of the century."

After years of delays, a significant step took place last week when a former aide to Mohammad, Majid Khan, accepted a plea deal with US authorities that will require him to testify against other terror suspects at a tribunal at Guantanamo Bay, Cuba.

More than a decade after the 2001 attacks that left nearly 3,000 people dead on US soil, the 46-year-old extremist known simply as "KSM" remains the ultimate figurehead in a legal battle fought by two successive US administrations.

President Barack Obama "can claim credit for killing (Osama) bin Laden and (Al Qaida cleric Anwar) Al Awlaqi, so nailing KSM would complete the hat trick and help quiet the conservative fearmongers who say he's weak on terrorism," former chief US military prosecutor Colonel Morris Davis told AFP.

Victory in the trial could prove critical to Obama this year in his re-election bid, where he faces Republicans critical of his approach to terrorism.

The Democratic president had sought to hold a trial for KSM and his four accused accomplices in New York, just steps from the Ground Zero site where the World Trade Center's twin towers fell.

But congressional Republicans put an end to those plans by blocking the transfer of terrorism suspects to the United States.

The five September 11 defendants, known as the "Guantanamo Five" for their incarceration at the US naval base in southern Cuba, will face a trial under special military tribunals created by the George W. Bush administration after the attacks.

Procedures for the military tribunals, also known as commissions, were modified by the Obama administration.

KSM, along with Walid bin Attash of Saudi Arabia, Yemen's Ramzi bin al-Shibh, Pakistan's Ammar Al Baluchi or Ali Abd Al Aziz Ali and Mustafa Al Hawsawi of Saudi Arabia, all face possible death penalties.

The 88-page indictment lists 2,976 murder counts for each of the victims of the coordinated attacks.

"Let's get rid of the alleged. KSM has admitted (the crimes) many times," said Michael Mukasey, who served as US attorney general under Bush.

KSM's first confessions were made when he was subjected 183 times to a simulated drowning method known as waterboarding and other so-called "enhanced" interrogation techniques at a secret CIA prison after his March 2003 capture.

But "no statement obtained as a result of coercion can be used" in a military commissions trial, chief prosecutor Brigadier General Mark Martins said in an interview.

Although KSM has since repeated his confessions, the prosecution needs to obtain statements that are legally admissible in court.

This is where Khan's awaited testimony fills the gap. The Pakistani national, who lived legally in America and graduated from a US high school, pleaded guilty at Guantanamo to a reduced charge of "conspiracy" to commit terrorism in exchange for a lighter sentence.

"If Khan provides information on KSM and others, as has been suggested was part of the deal, it will no doubt speed up the prosecutions," said Karen Greenberg, a terrorism expert at Fordham Law School.

With Khan's testimony in hand, KSM can be officially tried before a Guantanamo judge, which observers say could take place at any time.

The person who presides over the commissions, a judge known as the convening authority, now has "everything he needs to make the decision but he's not under a timeline," Martins said.

Baluchi has requested that he be spared the death penalty, saying he played a lesser role in the attacks.

But, following a vote in Congress, if the Guantanamo Five plead guilty, "they're allowed to be executed," said Adam Thurschwell, a general counsel in charge of defending Guantanamo detainees.

Baluchi's lawyer, James Connell, said it is the convening authority's choice to decide a date for the trial.

"We don't want them to rush into a decision but on the other hand, we don't want them to drag their feet," he added.

Although the defendants might make pre-trial appearances soon, the crucial trial could be months away.

"KSM wanted to use the rest of the trial as an opportunity to deliver a diatribe against US policy," said appellate attorney David Rivkin.

KSM himself has declared that he wants to die and become a martyr.

9/11 mastermind Khaled Sheikh Mohammed set to face US military court

http://www.heraldsun.com.au/archives/old-news-pages/mastermind-khaled-sheikh-mohammed-set-to-face-us-military-court/story-e6frf7n6-1226296208758

3/11/2012

NINE years after his arrest in Pakistan, self-proclaimed 9/11 mastermind Khaled Sheikh Mohammed could soon be back in court for the much-awaited "trial of the century".

Court illustration by Janet Hamlin shows Khalid Sheikh Mohammed seated during a hearing at the US Military Commissions Court for war crimes in

After years of delays, a significant step took place last week when a former aide to Mohammed, Majid Khan, accepted a plea deal with US authorities that will require him to testify against other terror suspects at a tribunal at Guantanamo Bay, Cuba.

More than a decade after the 2001 attacks that left nearly 3000 people dead on US soil, the 46-year-old extremist known simply as "KSM" remains the ultimate figurehead in a legal battle fought by two successive US administrations.

President Barack Obama "can claim credit for killing (Osama) bin Laden and (Al-Qaeda cleric Anwar) Al-Awlaqi, so nailing KSM would complete the hat trick and help quiet the conservative fearmongers who say he's weak on terrorism," former chief US military prosecutor Colonel Morris Davis told AFP.

Victory in the trial could prove critical to Obama this year in his re-election bid, where he faces Republicans critical of his approach to terrorism.

The Democratic President had sought to hold a trial for KSM and his four accused accomplices in New York, just steps from the Ground Zero site where the World Trade Center's twin towers fell.

But congressional Republicans put an end to those plans by blocking the transfer of terrorism suspects to the United States.

The five September 11 defendants, known as the "Guantanamo Five" for their incarceration at the US naval base in southern Cuba, will face a trial under special military tribunals created by the George W Bush administration after the attacks.

Procedures for the military tribunals, also known as commissions, were modified by the Obama administration.

KSM, along with Walid bin Attash of Saudi Arabia, Yemen's Ramzi bin al-Shibh, Pakistan's Ammar al-Baluchi or Ali Abd al-Aziz Ali and Mustafa al-Hawsawi of Saudi Arabia, all face possible death penalties.

The 88-page indictment lists 2976 murder counts for each of the victims of the coordinated attacks.

"Let's get rid of the alleged. KSM has admitted (the crimes) many times," said Michael Mukasey, who served as US attorney general under Bush.

KSM's first confessions were made when he was subjected 183 times to a simulated drowning method known as waterboarding and other so-called "enhanced" interrogation techniques at a secret CIA prison after his March 2003 capture.

But "no statement obtained as a result of coercion can be used" in a military commissions trial, chief prosecutor Brigadier General Mark Martins said in an interview.

Although KSM has since repeated his confessions, the prosecution needs to obtain statements that are legally admissible in court.

This is where Khan's awaited testimony fills the gap. The Pakistani national, who lived legally in America and graduated from a US high school, pleaded guilty at Guantanamo to a reduced charge of "conspiracy" to commit terrorism in exchange for a lighter sentence.

"If Khan provides information on KSM and others, as has been suggested was part of the deal, it will no doubt speed up the prosecutions," said Karen Greenberg, a terrorism expert at Fordham Law School.

With Khan's testimony in hand, KSM can be officially tried before a Guantanamo judge, which observers say could take place at any time.

The person who presides over the commissions, a judge known as the convening authority, now has "everything he needs to make the decision but he's not under a timeline," Martins said.

Baluchi has requested that he be spared the death penalty, saying he played a lesser role in the attacks.

But, following a vote in Congress, if the Guantanamo Five plead guilty, "they're allowed to be executed," said Adam Thurschwell, a general counsel in charge of defending Guantanamo detainees.

Baluchi's lawyer, James Connell, said it is the convening authority's choice to decide a date for the trial.

"We don't want them to rush into a decision but on the other hand, we don't want them to drag their feet," he added.

Although the defendants might make pre-trial appearances soon, the crucial trial could be months away.

"KSM wanted to use the rest of the trial as an opportunity to deliver a diatribe against US policy," said appellate attorney David Rivkin.

KSM himself has declared that he wants to die and become a martyr.

Two 9/11 suspects on Gitmo hunger strike, sources say

http://www.foxnews.com/politics/2012/03/13/two-11-suspects-reportedly-on-gitmo-hunger-strike/

By Catherine Herridge
Published March 13, 2012

pril 27, 20120: In this photo, reviewed by a U.S. Department of Defense official, a Guantanamo detainee does pull-ups inside an exercise area at the detention facility at Guantanamo Bay U.S. Naval Base.

At least two of the suspects in the 9/11 terror attacks have been on hunger strikes at the Guantanamo Bay detention camps since January, Fox News has learned.

The men, among the so-called “high value 14” who were transferred from the CIA secret prisons in 2006 to the Navy base in Cuba, are protesting conditions at Guantanamo’s Camp 7 and a new policy in which communications between detainees and their defense lawyers are reviewed for security purposes, according to knowledgeable sources who would not provide further detail.

It is not clear whether the men are refusing all foods and fluids or whether they are eating only on an occasional basis.

Defense Department spokesman Todd Breasseale said he could not discuss health-related issues of the 9/11 suspects, adding, “the physical well-being of detainees is our primary responsibility, and their security is of vital importance to our mission there. ... Hunger strikes are a form of non-violent protest, and those few who have engaged in this practice are monitored so that their health is never in any real danger. Their vital statistics are routinely monitored and they are not allowed to endanger their lives.”

In December, the admiral who oversees the detention camps ramped up the screening of communications and mail between the lawyers and their clients to keep out contraband. In January, it came to light during a routine military hearing at the base, that a copy of Al Qaeda’s Inspire magazine, likened to the “Martha Stewart Living” for would-be jihadists, nearly made it into the camps.

The American Bar Association has written to Defense Secretary Leon Panetta about the preservation of attorney-client privilege in the Guantanamo military prosecutions. While urging Panetta to take immediate steps to “rescind this policy,” Bill Robinson III, president of the ABA, wrote that it was especially important in death penalty cases.

The Defense Department’s current policy, Robinson said, "seriously compromises the ability of lawyers to meet their obligations and provide ethically and constitutionally adequate representation to their clients. It also impairs the ability of these dedicated lawyers to gain the trust and confidence of their clients.”

As for conditions at Camp 7, a detention facility so secretive that no journalist has ever been given access, it is claimed that they do not satisfy the requirements under the Geneva Conventions that establishes minimum guarantees for the treatment of “law of war detainees.”

On Feb. 24, all of the military defense lawyers for the 9/11 suspects at Camp 7, along with the lawyer Abu Faraj al-Libi, a Libyan implicated in a plot to blow up planes over the Atlantic in 2006, wrote to William K. Lietzau, deputy assistant secretary of defense for detainee policy. They claimed in the five-page letter that serious deficiencies remain in health care and living conditions.

The lawyers questioned the validity of a 2009 declassified report that stated the detainees enjoyed recreation yards with “elliptical machines and stationary bikes, soccer balls, racquetballs ... media rooms are available three times weekly for each detainee to watch movies of their choice, read newspapers, magazines (and) books.”

The lawyers said they “are not in a position to speculate as to the reason for the changes. ... Nonetheless, some appear to coincide with the arrival of the current JTF-GTMO commander, who has publicly expressed that he lost two comrades in the 9/11 attacks, and that he defines himself as part of the “9/11 generation.”

Let a jury decide Mohammed's fate

http://www.denverpost.com/opinion/ci_20175485/let-jury-decide-mohammeds-fate

By Terry McDermott
Posted: 03/15/2012 01:00:00 AM MDT

Among the many reasons Khalid Sheikh Mohammed, the man who planned the Sept. 11 attacks, should be tried in an American court of law, there is this:

"I decapitated with my blessed right hand the head of the American Jew, Daniel Pearl, in the city of Karachi, Pakistan. For those who would like to confirm, there are pictures of me on the Internet holding his head."

The murder of Pearl, the Wall Street Journal's South Asia bureau chief, was but one of 31 attacks or planned attacks that Mohammed confessed to in front of an American military tribunal at Guantanamo Bay on March 10, 2007. The crimes of KSM, as Mohammed is known within the international counterterrorism community, occurred around the globe over the course of a decade. They ranged from the wholly aspirational — plots to assassinate Bill Clinton and Pope John Paul II — to the horrifically real: Pearl was beheaded with a butcher knife.

For those keeping score, the confession to Pearl's brutal killing came five years after the crime. It has now been another five full years and still Mohammed remains in the limbo of Guantanamo. The limbo is ours, not his. Although he has claimed he would welcome martyrdom, he seems quite content to remain there in the military prison with his exercise machine, fellow detainees and the consternation that he has caused. The U.S. government, on the other hand, is still vexed about how to handle him.

The lines of debate have grown blurry over time, but the broad outlines have not changed. The George W. Bush administration and its supporters argued in favor of establishing military tribunals to try KSM and his fellow terrorism suspects. Barack Obama, when he was still candidate Obama, argued for closing Guantanamo and bringing the prisoners there to justice in the United States. Upon taking office, President Obama repeated this pledge, and in 2009, his attorney general announced that Mohammed and four of his cohorts would be tried in federal court in New York.

That announcement was greeted, predictably, with an uproar of opposition that grew to include majorities in both houses of Congress, which subsequently outlawed the spending of any federal money to transport the prisoners to the United States. Claims were made that holding a trial in New York would surely put the city at risk of terrorist attacks. Local politicians complained that the cost would be in the billions of dollars. A subsequent trial of a lesser terrorism figure gravely undermined many of the claims, but opposition remained entrenched.

Those opposed to trying KSM have argued that he would be able to hijack any proceeding against him and turn it into a publicity coup for al-Qaeda and its sympathizers. A trial might inevitably be a circus of some sort, but a propaganda victory for radical Islam? Hardly. Mohammed has been a perplexing figure on the few occasions when he has appeared in semi-public proceedings at Guantanamo. He is a curious, compelling but an almost clownish presence. As a propagandist, he's too comical and grandiose to be anything but an utter failure.

The government has recently signaled it might finally be ready to begin formal proceedings against KSM, bringing him before a military commission in Guantanamo. Such a commission would be heavily censored, and coverage would be limited. It would be a poor substitute for a trial before an American jury.

If putting on a trial for the crime at the center of the controversy — the Sept. 11 attacks against New York and Washington — is too much to undertake, why couldn't the government do a test case first? Why not try KSM for the relatively simple, if no less venal, execution of Pearl? We already have his confession on file and, as he boasts, video evidence of his "blessed right hand" caught in the act.