6 at Guantánamo Said to Face Trial in 9/11 Case
By William Glaberson
The New York Times
Saturday 09 February 2008
Military prosecutors are in the final phases of preparing the first sweeping
case against suspected conspirators in the plot that led to the deaths of nearly
3,000 Americans on Sept. 11, 2001, and drew the United States into war, people
who have been briefed on the case said.
The charges, to be filed in the military commission system at Guantánamo
Bay, Cuba, would involve as many as six detainees held at the detention camp,
including Khalid Shaikh Mohammed, the former senior aide to Osama bin Laden,
who has said he was the principal planner of the plot.
The case could begin to fulfill a longtime goal of the Bush administration:
establishing culpability for the terrorist attacks of 2001. It could also help
the administration make its case that some detainees at Guantánamo, where
275 men remain, would pose a threat if they are not held at Guantánamo
or elsewhere. Officials have long said that a half-dozen men held at Guantánamo
played essential roles in the plot directed by Mr. Mohammed, from would-be hijackers
But the case would also bring new scrutiny to the military commission system,
which has a troubled history and has been criticized as a system designed to
win convictions but that does not provide the legal protections of American
War-crimes charges against the men would almost certainly place the prosecutors
in a battle over the treatment of inmates because at least two detainees tied
to the 2001 terror attacks were subject to aggressive interrogation techniques
that critics say amounted to torture.
One official who has been briefed on the case said the military prosecutors
were considering seeking the death penalty for Mr. Mohammed, although no final
decision appears to have been made. The official added that the military prosecutors
had decided to focus on the Sept. 11 attacks in part as an effort to try to
establish credibility for the military commission system before a new administration
takes the White House next January.
“The thinking was 9/11 is the heart and soul of the whole thing. The
thinking was: go for that,” the official said, speaking on the condition
of anonymity because no one in the government was authorized to speak about
the case. Even if the charges are released soon, it would be many months before
a trial could be held, lawyers said.
A Pentagon spokesman, Bryan Whitman, declined to comment specifically. But
he added that the government was preparing a case against “individuals
who have been involved in some of the most grievous acts of violence and terror
against the United States and our allies.”
“The prosecution team is close to moving forward on referring charges
on a number of individuals,” Mr. Whitman said.
Ever since President Bush announced in 2006 that he had transferred 14 “high
value” detainees to Guantánamo from a secret C.I.A. detention program,
it has been expected that the Pentagon would eventually lodge charges involving
several of the numerous terror plots to which officials say several of those
men were tied.
Officials have said detainees now held at Guantánamo are responsible
for attacks that killed thousands of people, including the United States Embassy
bombings in East Africa in 1998, the attack on the destroyer Cole in 2000, and
the Bali nightclub bombing in 2002.
But it has always been clear that a case involving the Sept. 11 plot would
be the centerpiece of the military commissions system and its most stringent
test. After the Supreme Court struck down the Bush administration’s first
system for military commission trials in 2006, Congress enacted a new law.
Among other things, the Military Commissions Act provides that detainees charged
with war crimes are entitled to military lawyers to defend them, a presumption
of innocence and a right of appeal. But detainees’ lawyers and other critics
have said that many flaws remain, including the fact that the system is under
Pentagon control and even the judges are military officers.
Told of the possible charges, Carie Lemack, whose mother was killed on American
Airlines Flight 11, said such a trial would be a grueling process for the families.
But, Ms. Lemack said, “It is important that justice be brought to those
who killed my mother and nearly 3,000 others.”
It was not clear Friday whether final decisions had been made about precise
charges and which detainees are to be included.
But it is known that the prosecutors have considered charges of murder, conspiracy
and providing material support for terrorism because of the Sept. 11 deaths.
It is also known that a joint team of military and Department of Justice lawyers
working on the case have considered charging six of the best-known Guantánamo
Lawyers have said that two of those are men whose treatment in American hands
would inevitably be a focus of defense lawyers in their cases.
One of them, Mr. Mohammed, known as KSM, was subject to the simulated-drowning
technique known as waterboarding while in secret C.I.A. custody, Gen. Michael
V. Hayden, the director of the Central Intelligence Agency, confirmed this week.
The American-educated Mr. Mohammed was described by the Sept. 11 commission
as the “self-cast star, the superterrorist,” with plans for destruction
on a vast scale. At a Pentagon hearing last year, he claimed responsibility
for more than 30 terrorist attacks and plots.
He was explicit about his role in the 2001 attacks. “I was responsible
for the 9/11 operation, from A to Z,” he said.
The other detainee whose treatment could become a focus of any trial is Mohammed
al-Qahtani, who has been held at Guantánamo since 2002. Pentagon officials
have said he may have been the so-called “20th hijacker.” A month
before the attacks, he flew from Dubai to Orlando, Fla., but was denied entry
into the United States by an immigration official.
Pentagon investigators concluded in 2005 that he had been subject to abusive
treatment at Guantánamo, including sleep deprivation, being forced to
wear a bra and being led around on a leash.
Gitanjali Gutierrez, one of Mr. al-Qahtani’s lawyers at the Center for
Constitutional Rights, said she had no information about whether he would be
charged. “But if he is,” Ms. Gutierrez said, “I can assure
you that his well-documented torture and the controversy over secret trials
will be the focus.”
Zacarias Moussaoui, who at one point was identified by prosecutors as a potential
“20th hijacker” pleaded guilty to conspiracy in 2005, and is serving
a life term. He is the only person who has been tried in a United States court
for involvement in the Sept. 11 plot.
Defense lawyers are also expected to use any commission cases to challenge
the prosecutors over the C.I.A.’s destruction of tapes of interrogations
of two detainees, which has been acknowledged by the agency.
Among the other four potential defendants are Guantánamo detainees
who intelligence officials have said played critical support roles for the hijackers.
Officials say Ramzi bin al-Shibh, who had been a roommate of the lead hijacker
Mohamed Atta in Hamburg, Germany, was the main intermediary between the hijackers
and Al Qaeda leaders in the months before Sept. 11.
The Pentagon has described another detainee, Ammar al-Baluchi, a nephew of
Mr. Mohammed, as “a key lieutenant for KSM during the operation on 11
September” who wired $114,500 to the hijackers.
Mr. al-Baluchi’s assistant was Mustafa Ahmed al-Hawsawi, according to
various accounts. The September 11 commission said that Mr. al-Hawsawi had been
assigned by Mr. Mohammed to help coordinate hijackers’ travel and was
so centrally involved that he was their contact for unused money to be returned
in the days before the attacks.
Finally, the detainee known as Khallad, who is missing part of his right leg
as a result of what officials say is a long jihadist history, is believed to
have had long ties to Mr. bin Laden. Officials have said Khallad helped select
and train some of the hijackers and was originally slated to have been one of
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