Six 9-11 Co-Conspirators Charged

CIA Director Michael V. Hayden sent a congratulatory message to employees, saying the trials would be a "crucial milestone on the road to justice" for victims of the Sept. 11 attacks. [Washington Post 2-12-08]

Today the Department of Defense's Military Commissions charged six people for crimes related to the 9-11 terrorist attacks. The DoD has posted the actual charge sheet here. Prosecutors are seeking the death penalty for the accused terrorists. The evidence against the men was developed by FBI and military interrogators.

In 2006, some officials and reporters speculated about the terrible possibility that accomplices inside the US--even American citizens--might have played a role in these attacks by helping the 19 hijackers; however, I don't think American citizens would be tried by a Military commission.

Reporter David Shuster wrote (9-7-06) that Robert Cressey, the Director of Transnational Threats for the National Security Council, speculated:

"It seems to me that there was some other support mechanism there...Now, did that support mechanism know what these individuals were going to do? We don't know. But I think there was something here in the United States they relied upon."

The accused 9-11 co-conspirators charged today (2-11-08) are Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohammed al Kahtani. [Background about these men can be found here.]

Some commentators have asserted that legal issues are raised due to the fact that some suspected terrorists were subjected to waterboarding by CIA interrogators. According to CIA Director Michael Hayden, waterboarding was used because there were fears that more terrorist attacks were imminent.

Reuters (2-5-08) reports that in his 2-5-08 appearance before the Senate Intelligence Committee, CIA Director Michael Hayden testified:

Waterboarding has been used on only three detainees...The circumstances under which we are operating ... are frankly, different than they were in late 2001 and early 2002...Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent. In addition to that, my agency ... had limited knowledge about al Qaeda and its workings. Those two realities have changed [Full text].

Waterboarding was used on Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri, Hayden told the Senate. Zubaydah and al-Nashiri have not been charged in connection with the 9-11 attacks.

According to the Washington Post (2-12-08):

The Bush administration announced yesterday that it intends to bring capital murder charges against half a dozen men allegedly linked to the Sept. 11, 2001, terrorist attacks, based partly on information the men disclosed to FBI and military questioners without the use of coercive interrogation tactics...

FBI and military interrogators who began work with the suspects in late 2006 called themselves the "Clean Team" and set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons.

To ensure that the data would not be tainted by allegations of torture or illegal coercion, the FBI and military team won the suspects' trust over the past 16 months by using time-tested rapport-building techniques, the officials said...

Prosecutors and top administration officials essentially wanted to cleanse the information so that it could be used in court, a process that federal prosecutors typically follow in U.S. criminal cases with investigative problems or botched interrogations. Officials wanted to go into court without any doubts about the viability of their evidence, and they had serious reservations about the reliability of what the CIA had obtained for intelligence purposes.

"It was the product of a lot of debate at really high levels," one official familiar with the program said. "A lot of people were involved in concluding that it may not be the saving grace, but it would put us on the best footing we could possibly be in. You can't erase what happened in the past, but this was the best alternative."

The existence of an FBI effort to reconstruct CIA evidence was previously reported in the Los Angeles Times, but officials provided new details and described its success in interviews over the past week.

At CIA headquarters, yesterday's announcement of the prosecutions was applauded. The agency previously interrogated five of the six men in secret prisons. CIA Director Michael V. Hayden sent a congratulatory message to employees, saying the trials would be a "crucial milestone on the road to justice" for victims of the Sept. 11 attacks...

Notably absent from the Pentagon's list are Zayn Abidin Muhammed Hussein, commonly known as Abu Zubaida, and Abd al-Rahim al-Nashiri, the detainees who, in addition to Mohammed, are known to have been subjected to waterboarding. Lawyers for the detainees have predicted that courts will throw out as illegal the evidence the CIA obtained in such sessions.

"There's strong consensus that the 'big' case should be brought first -- that is, the prosecution of those who played a direct role in the 9/11 attacks," a law enforcement official said. U.S. officials think Abu Zubaida and Nashiri were not directly involved in the Sept. 11 plot.

The plan to obtain voluntary disclosures emerged from a small group of senior officials from several agencies who took the defense secretary's Gulfstream jet to Guantanamo Bay shortly after the high-value detainees were transferred there. They quickly decided to distance themselves from the CIA's interrogation approach and to try to talk to the men as near-equals. Officials said that instead of being forced to endure endless grilling, the detainees were allowed to say when interviews would start or end.

Observers watched the interrogations remotely so they could verify that the questioning complied with the Army's updated field manual on interrogations, which includes strict prohibitions against aggressive techniques.

Robert M. Chesney, a Wake Forest University law professor who follows the tribunals process, said it would have been difficult, if not impossible, to use much of the information derived from CIA interrogations in military trials, in part because the Military Commissions Act of 2006 forbids evidence obtained through torture.

At the same time, he said, "it obviously would have been even easier if they had done it this way from the beginning. There is the question of lingering taint."
Chesney and other legal experts said defense attorneys could argue that the government would never have had a case without the CIA's coercion. It is unclear whether that will matter in the military commissions system, which gives prosecutors more leeway than they have in regular criminal courts.

"There's something in American jurisprudence called 'fruit of the poisonous tree': You can clean up the tree a little but it's hard to do," said John D. Hutson, a retired Navy rear admiral and former judge advocate general. "Once you torture someone, it is hard to un-torture them. The general public is going to be concerned about the validity of the testimony."

Another U.S. law enforcement official said the effort was in part a reflection of the FBI's standard approach to interrogations. FBI agents emphasize building "rapport" -- flattering egos, attending to small requests and casting themselves as a friendly force in an otherwise adversarial climate. Such tactics have been used with success in many high-profile cases over the years, including the interrogation of former Iraqi president Saddam Hussein.

"We do not use coercive techniques of any sort in the course of our interrogations," FBI Director Robert S. Mueller III testified last week before the Senate intelligence committee, saying that the FBI's approach is "sufficient and appropriate to the mission that we have to accomplish." [Full text of pages one and two]

Here is the full text of the DoD press release (2-11-08):

Defense Department Seeks Death Penalty for Six Guantanamo Bay Detainees

By Sgt. Sara Moore, USAAmerican Forces Press Service

WASHINGTON, Feb. 11, 2008 – The Defense Department announced today it has sworn criminal charges and is seeking the death penalty against six detainees held at Guantanamo Bay, Cuba.

The detainees charged include Khalid Sheikh Mohammed, the alleged mastermind behind the Sept. 11, 2001, terrorist attacks, and five others charged in connection with the attacks, Air Force Brig. Gen. Thomas W. Hartmann, legal advisor to the convening authority in DoD’s Office of Military Commissions, told reporters at the Pentagon.

Besides Mohammed, those charged are: Walid Muhammad Salih Mubarek bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al-Hawsawi, and Mohamed al-Kahtani. All six detainees are being charged with conspiracy, murder in violation of the law of war, attacking civilians and civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism, and providing material support for terrorism.

Mohammed, bin Attash, Binalshibh, and Aziz Ali also are charged with the substantive offense of hijacking or hazarding a vessel, Hartmann said.

“These charges allege a long-term, highly sophisticated, organized plan by al Qaeda to attack the United States,” Hartmann said.

The chief prosecutor, who submitted the charges, has recommended that the six detainees be tried jointly and that the case be referred as capital for each defendant. Now that the charges are sworn, the convening authority, Susan Crawford, will review the charges and supporting evidence to determine whether probable cause exists to refer the case for trial by military commission and whether the case should be capital, Hartmann said.

If Crawford does refer the case to trial, it will take place at Guantanamo Bay, and the Defense Department will make the hearings as open as possible, Hartmann said. He emphasized that the charges today represent allegations only, and the detainees are innocent until proven guilty.

The charge sheet details 169 overt acts allegedly committed by the defendants in the planning and execution of the Sept. 11 events. The charges allege that: --

Khalid Sheikh Mohammed was the mastermind of the Sept. 11 attacks by proposing the operational concept to Osama bin Laden as early as 1996, obtaining approval and funding from bin Laden for the attacks, overseeing the entire operation, and training the hijackers in all aspects of the operation in Afghanistan and Pakistan.

-- Walid Muhammad Salih Mubarek bin Attash administered an al Qaeda training camp in Logar, Afghanistan, where two of the 19 Sept. 11 hijackers were trained. He is also alleged to have traveled to Malaysia in 1999 to observe airport security by U.S. air carriers to assist in formulating the hijacking plan.

-- Ramzi Binalshibh lived with the Hamburg, Germany, al Qaeda cell where three of the Sept. 11 hijackers resided. It is alleged that Binalshibh was originally selected by bin Laden to be one of the Sept. 11 hijackers and that he made a “martyr video” in preparation for the operation. He was unable to obtain a U.S. visa and, therefore, could not enter the United States as the other hijackers did. In light of this, it is alleged that Binalshibh assisted in finding flight schools for the hijackers in the United States and continued to assist the conspiracy by engaging in numerous financial transactions in support of the Sept. 11 operation.

-- Ali Abdul Aziz Ali’s role included sending about $120,000 to the hijackers for their expenses and flight training and facilitating travel to the United States for nine of the hijackers.

-- Mustafa Ahmed Adam al-Hawsawi assisted and prepared the hijackers with money, Western clothing, traveler’s checks and credit cards. He is also alleged to have facilitated the transfer of thousands of dollars between the accounts of alleged Sept. 11 hijackers and himself on Sept. 11, 2001.

-- Mohamed al-Kahtani attempted to enter the United States on Aug. 4, 2001, through Orlando (Fla.) International Airport, where he was denied entry. It is also alleged that Kahtani carried $2,800 in cash and had an itinerary listing a phone number associated with Hawsawi.

In addition to the right to examine evidence used against them, including classified evidence, Hartmann noted that detainees in the military commissions process also have many other rights, including the right to remain silent, the right to representation by a detailed military counsel or civilian counsel at no expense to the government, the right to obtain evidence and call witnesses on their own behalf, the right to cross-examine prosecution witnesses, and the right to be present during presentation of evidence.

In the case of a capital offense, a military commission panel composed of at least 12 members will determine a detainee’s guilt, and the detainee has the right to appeal the panel’s decision first to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the U.S. Supreme Court.

“These rights are guaranteed to each defendant under the Military Commission Act and are specifically designed to ensure that every defendant receives a fair trial, consistent with American standards of justice,” Hartmann said.

Hartmann gave no possible timeline for the trials, but said that if Crawford does refer the cases to trial, the military commission will have 30 days to arraign the accused detainees, and 120 days to start the trial.

Classified evidence may need to be presented during the trial, but the decision to use any evidence, including that obtained through interrogation, will be made by the military judge in the case based on the recommendations of the prosecution and defense, Hartmann said.

“We are a nation of law and not of men, and the question of what evidence will be admitted, … will be decided in the courts in front of a judge after it’s fought out between the defense and the prosecution in these cases,” he said. “That’s the rule of law; that’s the procedure the Congress has provided to us; and that’s what we will use to finally answer these questions.”

Hartmann noted that the sequence of events used in charging detainees at Guantanamo Bay is very similar to that used in charging U.S. servicemembers in military courts. “It's our obligation to move the process forward, to give these people their rights,” he said. “We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield, and I think we'll all agree are national treasures.”

Biographies:
Brig. Gen. Thomas W. Hartmann, USAF

Related Sites:
Military Commissions