Defense in Sept. 11 case alleges unfair prejudice
FT. MEADE, Md. — Top officials in the George W. Bush and Obama administrations, including the two presidents themselves, repeatedly pronounced a group of alleged senior Al Qaeda leaders guilty in the Sept. 11 conspiracy and created an “unlawful command inf luence” that pressured the U.S. military to charge them with capital murder, defense lawyers said Friday.
The lawyers, speaking at a pretrial military commission hearing on the U.S. Naval Base at Guantanamo Bay, Cuba, asserted that Washington officials unfairly prejudged their clients. They asked the judge to let them question political and military leaders, and research how deeply those officials were involved in creating the criminal case and whether they directly pressured the military to seek the death penalty.
“We want to take a look at these individuals and their actions,” said Navy Cmdr. Walter Ruiz, representing Mustafa Ahmed Hawsawi, an alleged Al Qaeda financier. “Unlawful inf luence in this case does exist. It is more than a mere allegation. We need to air out these very serious issues.”
He invoked the courtmartial of Army Lt. William Calley in the 1968 My Lai massacre in Vietnam, and cited court rulings referring to officials pressuring the military to bring him to trial.
Army Maj. Robert McGovern, a prosecutor in the Sept. 11 case, said “the government is trying to be responsible and responsive to these requests. We are prepared to meet our obligations.”
But he said the defense had no “theory of relevance” for how these allegations relate to the underlying charges of conspiracy, murder and terrorism against the defendants, including alleged mastermind Khalid Shaikh Mohammed.
“This request is extremely broad, wildly broad,” McGovern said. “They want the government to basically look inside every government filing cabinet.”
The prosecutor added, “They want information like the president of the United States emailing someone about the referral [of charges] in this case.... We don’t want this to become a big fishing expedition.”
The judge, Army Col. James L. Pohl, will study the matter before issuing a ruling. But he noted that “in big cases” like this, defense lawyers have pursued allegations of unwarranted command pressure.
In their legal papers, defense attorneys cited numerous instances in which senior Washington officials “convicted” the defendants in speeches, press conferences, news releases and Capitol Hill testimony.
When Ramzi Binalshibh, the alleged plot cell manager, was captured in September 2002, Bush said in a Washington speech: “The person who thought he’d be the 20th hijacker, Binal- shibh, is no longer a threat to the United States of America and our friends and allies.”
After Mohammed and Hawsawi were caught in March 2002, Bush’s press office called Mohammed “one of Osama bin Laden’s most senior and significant lieutenants, a key Al Qaeda planner and the mastermind of the Sept. 11 attacks.”
In a news conference, Bush said Mohammed “conceived and planned the hijackings and directed the actions of the hijackers.”
Walid bin Attash, an alleged Al Qaeda training camp steward, and Ammar al Baluchi, a.k.a. Ali Abdul Aziz Ali, an alleged Al Qaeda financier, were arrested in April 2003, and Bush in a news conference said his administration was “dismantling senior management” of Al Qaeda.
In November 2009, Obama told CNN that his administration was reforming the military commission system and that prosecutors were ready to start “presenting evidence against them, locking them up and exacting swift justice.” That same day, Atty. Gen. Eric H. Holder Jr. told the Senate Judiciary Committee that “the acts KSM [Mohammed] perpetrated are not only crimes but they are acts of war.”
And Vice President Joe Biden, on CBS’ “Face the Nation” in February 2010, declared of Mohammed: “Looking at the evidence that’s been made available to me as part of, in a general sense, the executive branch and the prosecuting team, I am absolutely convinced he will be put away for a long, long time.”
The five defendants were not present at the hearing.