Me­thod­i­cal ap­proach slows trial of 9/11 mas­ter­mind

The Washington Times Weekly - - Geopolitics - BY ROWAN SCAR­BOR­OUGH

The mil­i­tary of­fi­cer over­see­ing the pros­e­cu­tion of Khalid Shaikh Mo­hammed is tak­ing a go-slow ap­proach that would bring the con­fessed Sept. 11 mas­ter­mind to trial months, or per­haps years, from now.

It was seven years ago when the CIA in Pak­istan cap­tured Mo­hammed and even­tu­ally turned him over to U.S. mil­i­tary cus­tody for a war-crimes trial at U.S. Naval Base Guan­tanamo Bay, Cuba.

It was six months ago when At­tor­ney Gen­eral Eric H. Holder Jr. re­lented to po­lit­i­cal pres­sure in New York and Washington and re­versed his de­ci­sion to try Mo­hammed in a civil­ian court in the Big Ap­ple.

Since then, re­tired Navy Vice Adm. Bruce Mac­Don­ald, who as the “con­ven­ing au­thor­ity” is over­see­ing pros­e­cu­tions of ter­ror­ism sus­pects by mil­i­tary com­mis­sions, has set out a step-bystep process be­hind the scenes to be­gin the most prom­i­nent trial of the five 9/11 co-con­spir­a­tors held at Guan­tanamo.

Charles Stim­son, former Pen­tagon ad­viser to the de­fense sec­re­tary on de­tainee af­fairs, said Adm. Mac­Don­ald is mak­ing sure ev­ery de­tail is ad­dressed to en­sure that ap­peals courts will view the mil­i­tary com­mis­sion process as fair.

“Un­like pre­vi­ous at­tempts to get the com­mis­sion started against [Mo­hammed] and his four co-con­spir­a­tors, the con­ven­ing au­thor­ity has taken a very dif­fer­ent ap­proach, and the ap­proach mir­rors in prac­tice what hap­pens in the civil­ian sec­tor at the state and fed­eral level,” said Mr. Stim­son, a com­man­der in the Navy Re­serve who serves as a mil­i­tary judge.

“Peo­ple want jus­tice for the acts of 9/11,” Mr. Stim­son said. “Jus­tice de­layed, in their minds, is jus­tice de­nied, as the say­ing goes.

“The fact that there has not been a trial for the acts of 9/11 is frus­trat­ing to many peo­ple. In their minds, it has just taken too long. They want [Mo­hammed] and any co-con­spir­a­tors tried in a court of law and held re­spon­si­ble for their ac­tions,” he said.

“The con­ven­ing au­thor­ity has de­cided, to en­sure a fair and im­par­tial trial, each side should be given the re­sources they need up­front. And that just takes time,” Mr. Stim­son said.

One time-con­sum­ing change by Adm. Mac­Don­ald is to hear de­fense at­tor­neys’ re­quests for “mit­i­ga­tion ex­perts” — peo­ple who would tes­tify for the de­fense at a post-con­vic­tion hear­ing at which the mil­i­tary would seek the death penalty.

Ap­prov­ing the wit­nesses now, Mr. Stim­son said, would in the­ory blunt an ap­peal ar­gu­ment that the de­fense was de­nied ac­cess to such ex­perts dur­ing trial whose in­for­ma­tion should have gone to the jury then, not at sen­tenc­ing. Such ex­perts might tes­tify about Mo­hammed’s child- hood or men­tal state.

“The con­ven­ing au­thor­ity is lis­ten­ing and ac­tively so­lic­it­ing in­for­ma­tion from the de­fense about why they be­lieve cap­i­tal pun­ish­ment should be off the ta­ble up­front,” Mr. Stim­son said. “At the same time, he is so­lic­it­ing in­for­ma­tion from them re­gard­ing what mit­i­ga­tion ex­perts they would want were there a trial and he was con­victed at all.

“This is smart, and it is smart for a va­ri­ety of rea­sons,” Mr. Stim­son said. “If [Adm. Mac­Don­ald] de­layed this de­ci­sion, that would de­lay the trial even if the trial gets started. It could de­lay it for a long pe­riod of time. And, more im­por­tantly, it could re­sult in a con­vic­tion be­ing over­turned on ap­peal.”

Re­tired Brig. Gen. Thomas Hem­ing­way, a former top le­gal ad­viser to the com­mis­sion con­ven­ing au­thor­ity, said that while Mr. Holder was mulling the Mo­hammed case, Pres­i­dent Obama changed the Man­ual for Mil­i­tary Com­mis­sions by ex­ec­u­tive or­der in 2010.

The change re­quires that de­fen­dants fac­ing cap­i­tal charges in mil­i­tary tri­bunals have ac­cess to a “learned coun­sel” — a lawyer ex­pe­ri­enced in death­penalty cases.

“Much of the time since April has been con­sumed by find­ing ‘learned coun­sel’ and go­ing through the process to se­cure such coun­sel the req­ui­site se­cu­rity clear­ance,” Gen. Hem­ing­way said.

Mo­hammed’s “learned coun­sel” is David Nevin, a de­fense lawyer in Boise, Idaho. Mo­hammed also is be­ing de­fended by an Army and a Marine Corps judge ad­vo­cate.

In ad­di­tion to de­cid­ing on wit­nesses and whether the charges merit the death penalty, Adm. Mac­Don­ald must de­ter­mine whether he will level the charges against Mo­hammed con­tained in a 90-page “charge sheet” brought by mil­i­tary pros­e­cu­tors.

At some point, the de­fense will have 60 days to file pre­trial mo­tions, which could take months to con­clude. At­tor­neys likely will seek pros­e­cu­tion ev­i­dence and ask that Mo­hammed’s state­ments be ruled in­ad­mis­si­ble at trial.

Mo­hammed was one of three high-value al Qaeda cap­tives wa­ter­boarded by the CIA to ob­tain in­for­ma­tion on the group’s struc­ture, fi­nanc­ing and planned at­tacks.

Mr. Stim­son said a trial might not start un­til 2013.

In court ap­pear­ances in 2008, Mo­hammed ad­mit­ted to mas­ter­mind­ing the 9/11 at­tacks and asked the mil­i­tary judge to end mo­tions in the case and let him plead guilty.

The charge sheet states, in part: “In Au­gust 1996, [Osama] bin Laden (al Qaeda’s ‘emir’ or leader) is­sued a pub­lic ‘Dec­la­ra­tion of Ji­had Against the Amer­i­cans,’ in which he called for the mur­der of U.S. mil­i­tary per­son­nel serv­ing on the Ara­bian Penin­sula. In 1996, Khalid [Shaikh] Mo­hammed met with [Osama] bin Laden in Afghanistan and dis­cussed the oper­a­tional con­cept of hi­jack­ing com­mer­cial air­lin­ers and crash­ing them into build­ings in the United States and else­where. This plan was ul­ti­mately ap­proved by [Osama] bin Laden.”

The charges against Mo­hammed and the other four co­con­spir­a­tors in­clude mur­der, hi­jack­ing and ter­ror­ism.

Miles Yu can be reached at mmilesyu@gmail.com.

WWW.MUSLM.NET VIA AS­SO­CI­ATED PRESS

This July 2009 photo from the Ara­bic-lan­guage web­site www.muslm.net shows a man it iden­ti­fies as Khalid Shaikh Mo­hammed in de­ten­tion at U.S. Naval Base Guan­tanamo Bay, Cuba.

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