By Anthony Dworkin

The US Defense Department announced on Monday February 10 that it had filed charges against six so-called "high-value" detainees at Guantanamo Bay for involvement in the attacks of September 11, 2001.  Among those charged is the alleged mastermind of the attack, Khalid Sheikh Mohammed.  If a trial of the men goes ahead it will form the centrepiece of the much-disputed military commission process.  Nearly six and a half years after the attacks of 9/11, there is for the first time a prospect that some of those responsible will face prosecution and punishment in the forthcoming months.

The idea of a high-profile trial on charges relating to the attacks of September 11 represents both a fulfilment of the initial justification offered for the military commissions, and the greatest test yet of an improvised system of justice that has faced widespread criticism and has yet to hold a single contested trial.  The Pentagon announced today that prosecutors would seek the death penalty for the six defendants, which will only increase the stakes in the trial and the critical attention it receives.

The six men charged are Khalid Sheikh Mohammed; Walid Muhammad Salih Mubarek Bin 'Attash, who is alleged to have administered an al-Qaeda training camp where two of the hijackers were trained; Ramzi Binalshibh, who is thought to have been originally chosen as one of the hijackers, and subsequently organized the finances for the others after he failed to obtain a US visa; Ali Abdul Aziz Ali, said to have helped with the financial and travel arrangements for the attackers; Mustafa Ahmed Adam al Hawsawi, also alleged to have been involved in the logistical arrangements for the attack; and Mohamed al-Qahtani, the suspected "twentieth hijacker" who was detained while trying to enter the United States on August 4, 2001.

The rules for the trials, and the offences charged against the men, are drawn from the 2006 Military Commissions Act, which established a statutory basis for the tribunals after the initial system set up by President Bush in late 2001 was overturned by the Supreme Court in the Hamdan case.  The charges consist of conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism.  According to Brig. Gen. Thomas Hartmann, legal advisor to the commissions' Convening Authority, the prosecution will demonstrate the existence of a "long-term, highly sophisticated organized plan by al-Qaeda to attack the United States of America."

Under the Military Commissions Act, all defendants are entitled to a lawyer, to remain silent, to see all the evidence against them, to call witnesses and to appeal the decision to the newly-established Court of Military Commission Review and then to the Court of Appeals for the District of Columbia and the Supreme Court.  In cases in which the death penalty is sought, the case must be heard by a panel of twelve members and the panel's decision must be unanimous.

The commission rules exclude the use of statements obtained under torture, but they allow evidence obtained through coercive interrogation as long as the statement is judged to be "reliable and possessing sufficient probative value."  The rules place further limits on statements made under coercive interrogation after the passage of the Detainee Treatment Act in December 2005--evidence obtained after that date through the use of cruel, inhuman and degrading treatment is also not admissable.

In one of the most controversial aspects of the rules of procedure, hearsay evidence may be admitted unless the defense is able to demonstrate that it is "unreliable or lacking in probative value."

The military commission rules allow trials to be closed if necessary for reasons of national security, but Brig. Gen. Hartmann said the Pentagon's goal was to have the trials "as completely open as possible."

It seems certain that one of the most aspects of the trial that will receive the most attention is the treatment the defendants have suffered.  The CIA has admitted that Khalid Sheikh Mohammed was subjected to waterboarding, a procedure designed to create the sensation of drowning that is widely regarded as torture (but which the US administration insists is lawful).  In addition, al-Qahtani was subjected to highly coercive interrogation over a period of several weeks, according to a log of his interrogation that has been made public; human rights groups have described his treatment as torture also. 

Announcing the charges, Brig. Gen Hartmann refused to be drawn on whether statements obtained under waterboarding would be introduced by the prosecution.  He said, "All of the issues with regard to the admissibility of evidence and the decision of what evidence to proudce and to try to bring into the court will be the decision of the prosecutors... We will follow the rule of law.  We will apply the rule of law.  And evidence with regard to the admissibility of evidence will be determined by the prosecution and the defense fighting out and a military judge making that decision."

It is doubtful that the Pentagon will wish to have the lawfulness of waterboarding become an issue before the court (and in possible subsequent appeals before civilian appeals courts) and it therefore seems unlikely that the prosecution will explicitly introduce evidence from such interrogations.  However the rules allow prosecutors not to disclose "the sources, methods, or activities" by which evidence was acquired if those methods are classified, and human rights groups say this means it may be difficult to tell whether evidence acquired by methods that may qualify as torture is being admitted or not.

On Tuesday February 12, the Washington Post reported that a group of FBI and military interrogators who dubbed themselves the "clean team" had conducted a fresh series of interrogations of the detainees who had been held by the CIA, in order to obtain statements without coercion that could be used in court.  According to the report, "the FBI and military team won the suspects' trust over the past 16 months by using time-tested rapport-building techniques" including giving the detainees Starbucks coffee. By doing this, they are reported as claiming, they obtained almost identical information to that extracted from the same people by the CIA using coercive techniques.  However such evidence would almost certainly be rejected in a standard criminal trial, because the so-called "Clean Team" may have benefited from earlier coercive interrogation to provide guidelines for the information they were seeking to obtain, and because the use of torture or cruel and inhuman treatment would probably be thought to invalidate any later statements made by them.

By announcing the charges against the September 11 suspects before any full trials before the commissions have been completed, the Pentagon risks further complications.  One question that has not yet been settled is whether all the offenses listed as crimes in the Military Commissions Act are in fact legally eligible for trial before the military commissions.  By law, commissions have traditionally been restricted to trying offenses against the laws of war, and it is not clear that some of the offenses listed in the Act are in fact violations of the customary law of war--including conspiracy and providing material support for terrorism.  However the prosecution appears on firmer ground with charges of murder and attacking civilians, which do match offenses under the law of war (for instance Common Article 3 of the Geneva Conventions forbids "violence to life and person, in particular, murder" of persons not taking an active part in hostilities.

Although trials before the military commissions are moving forward, the Guantanamo detention and trial system is still the subject of a pending decision by the US Supreme Court.  Lawyers representing two detainees (who have not yet been charged) are seeking a ruling that Guantanamo detainees have the right to challenge the rules for their detention in US courts through petitioning for a writ of habeas corpus.  The Military Commissions Act removed the right of habeas corpus from Guantanamo detainees, but the detainees' lawyers claim that the denial of habeas rights is unconstitutional.

Related Chapters from Crimes of War: What the Public Should Know:

Guantanamo

Related Links:

Charge Sheet Against Khalid Sheikh Mohammed et al. (.pdf file)

Department of Defense News Briefing with Brig. Gen Hartmann from the Pentagon

February 11, 2008

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