MIAMI – The Pentagon on Wednesday cleared the way for a death penalty trial against five Guantanamo Bay captives charged with engineering the Sept. 11, 2001, terrorist attacks.
Retired Navy Vice Adm. Bruce MacDonald, who is in charge of military commissions, signed off on the capital trial against alleged mastermind Khalid Sheikh Mohammed, 46, and four accused co-conspirators.
The men face charges of terrorism, hijacking aircraft, conspiracy and murder in violation of the law of war, among other charges, in the system set up by President George W. Bush within months of the attack, and then modified by President Barack Obama in 2009.
If convicted, they could be sentenced to death using a method to be decided by Defense Secretary Leon Panetta or his successor.
The charges accuse the five of organizing the attacks – including funding and training the 19 men who hijacked four commercial airliners on Sept. 11, 2001, and crashed them into the World Trade Center, the Pentagon and a field in Shanksville, Pa., killing 2,976 people.
The lead trial attorneys are retired Army Col. Robert Swann and federal prosecutor Edward Ryan – the same two men designated by the Bush administration to prosecute the case.
Obama halted the previous trial and Attorney General Eric Holder was initially determined to prosecute the five in Manhattan, not far from the site of the World Trade Center. But Holder reversed course a year ago after members of Congress raised a variety of protests – arguing that a federal prosecution would put an even larger al-Qaida bull’s-eye on New York, would snarl traffic or would risk acquittal if a civilian judge or jury concluded that the evidence against them was obtained through torture.
Pentagon prosecutors have been preparing their case since then.
White House spokesman Jay Carney said the decision to go forward with the trial at Guantanamo did not diminish Obama’s desire to close the detention center there.
“There have obviously been obstacles in achieving that. But he remains committed to doing that,” said Carney. “In the meantime, we have to ensure that Khalid Sheikh Mohammed and others who are accused of these heinous crimes are brought to justice. And a procedure is now under way to ensure that that happens.”
The decision drew a rebuke from the American Civil Liberties Union, which has funded some of the 9/11 defense lawyers.
The Obama administration “is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice,” said Anthony Romero, the group’s executive director. He said the war court was “set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial.”
“Whatever verdict comes out of the Guantanamo military commissions will be tainted by an unfair process and the politics that wrongly pulled these cases from federal courts, which have safely and successfully handled hundreds of terrorism trials,” he said.
All five were interrogated by the CIA in secret overseas prisons – Mohammed was water-boarded 183 times, according to declassified CIA documents – before their 2006 transfer to Guantanamo. Once in Cuba, he bragged to a panel of U.S. military officers that he was responsible for the Sept. 11 attacks “from A to Z.”
The chief prosecutor, Army Brig. Gen. Mark Martins, has said that by law no evidence derived through torture can be used at a Guantanamo trial.
MacDonald signed the 123-page charge sheet alleging the five men engaged in a years-long conspiracy that trained the 9/11 hijackers in Afghanistan and Pakistan, funded them in wire transfers from Persian Gulf nations and dispatched some of them to the United States from Germany. It will be up to an 11-member team of U.S. prosecutors to prove it to a military jury of a dozen or more members.
But first, the military has to present the charges at the remote prison at the U.S. base in southeast Cuba, assign a judge to the case and give the defendants a formal appearance at the war court compound, Camp Justice, probably in May. Months of pretrial challenges, including wrangling over defense resources and whether the men are competent to defend themselves, are likely to follow.
The other four men facing the death penalty charges in the joint trial are Waleed bin Attash, 33, a Yemeni; Ramzi Binalshibh, 39, a Yemeni; Mustafa Ahmad al-Hawsawi, 43, a Saudi; and Ali Abd al-Aziz Ali, 34, a Pakistani who is Mohammed’s nephew and also known as Ammar al Baluchi.
A Pentagon-paid defense lawyer for Ali, who is accused of wiring money to the 9/11 hijackers, has argued his client should not face a capital trial because he isn’t alleged to have killed or plotted to kill anyone.
“Mr. Ali would not be eligible for the death penalty if this case were tried in federal court,” said attorney James Connell. “This attempt to expand the reach of the death penalty to people who neither killed nor planned to kill is another example of the second-class justice of the military commissions.”