History > 2008 > USA > Justice > Military justice (I)

Arraigned,

9/11 Defendants Talk of Martyrdom
 

June 6, 2008
The New York Times
By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba — When at last he got the chance to speak, Khalid Shaikh Mohammed, the self-proclaimed planner of the Sept. 11 attacks, on Thursday called President Bush a crusader and ridiculed the trial system here as an inquisition.

Mr. Mohammed, the former senior operations chief for Al Qaeda, said he would represent himself and dared the Guantánamo tribunal to put him to death.

“This is what I want,” he told a military judge here, in his first appearance to answer war crimes charges for the terrorism attacks that killed 2,973 people and set America on a path to war.

“I’m looking to be martyr for long time,” he said in serviceable English, improved, perhaps, by five years of custody, including three in secret C.I.A. prisons.

The arraignment on Thursday of Mr. Mohammed and four other detainees the government says were high-level coordinators of the Sept. 11 attacks was the start of hearings in the case, which is the centerpiece of the Bush administration’s war crimes system here.

But it was also the first public appearance by Mr. Mohammed, who has long cast himself in the role of superterrorist, claiming responsibility in the past not only for the 2001 plot, but for some 30 others, including the murder of Daniel Pearl, a reporter for The Wall Street Journal.

A bushy gray beard all but covered Mr. Mohammed’s face, so familiar from the well-known photograph of him in a baggy undershirt that was taken the day of his capture in Pakistan in 2003. On Thursday, he worked to get as much control as possible over the proceedings.

Peering through big black-rimmed glasses, he rejected American lawyers as agents of the Bush administration’s “crusade war against Islamic world.” He said the lawyers could stay to help him as advisers.

He quickly staked out his position as the leader of the accused men. He gestured to them, shared animated conversations while the proceedings droned on and, at one point, turned his chair toward the back of the courtroom to face his co-defendants, lined up in a row behind him.

His strategy seemed to work. One of the detainees, a military lawyer said, decided to reject his lawyers on Thursday, after a few minutes in the courtroom. Another, Mustafa Ahmed al-Hawsawi, was intimidated by Mr. Mohammed, said his designated lawyer, Maj. Jon Jackson.

By day’s end, each of Mr. Mohammed’s four co-defendants had said he wanted to represent himself. That could turn a trial into a jumble of rhetoric and a new opportunity for critics to attack the Guantánamo system as designed to get easy convictions.

Each of the five men remained seated when the judge asked that they rise for the formal arraignment.

“I reject this session,” said Walid bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the hijackers. Ramzi bin al-Shibh, who was to have been one of the hijackers, said that he too, like Mr. Mohammed, was ready for martyrdom.

He recalled that he had “tried for 9/11” but was denied an American visa so had missed his chance.

The judge, Col. Ralph H. Kohlmann, agreed to permit three of the men to represent themselves. He said he wanted more information on Major Jackson’s assertion. In Mr. Shibh’s case, he said he wanted to investigate a new report on Thursday from a military lawyer that Mr. Shibh has been on psychotropic medication.

When Judge Kohlmann asked Mr. Shibh why he was taking the medication, security officials cut the sound fed to reporters in a glassed-in gallery and a satellite press center. It was one of half a dozen times in a long court day when a private national-security consultant to the court cut the sound when detainees appeared to be discussing what several of them said had been years of torture.

Mr. Mohammed managed to get the reference through the censor twice.

“After torturing,” he said, warming to his subject, “they transfer us to Inquisitionland in Guantánamo.”

Central Intelligence Agency officials have said that Mr. Mohammed was one of three detainees subjected to the simulated drowning technique known as waterboarding.

The sound was cut twice when Mr. Mohammed seemed to be discussing his claim.

He was far from shy, and he looked lean compared with the photograph taken of him after his 2003 capture. He chanted verses in Arabic and then translated them into English. He vied with Judge Kohlmann for control of the courtroom.

“Go ahead,” he told the judge from time to time when there was a pause, as if he, at the shiny new defense table in a specially built courtroom here, and not the man in the black robe on the bench, were in charge.

He was, Mr. Mohammed said cheerfully, unable to accept lawyers who knew little of Islamic law. He asked that the five men facing terrorism, conspiracy and other charges for the Sept. 11 attacks be permitted to meet. They needed, he said, to plan “one front.”

The request for a meeting, like most requests from the defense on Thursday, was rejected by Judge Kohlmann.

All five accused men were held in the secret C.I.A. program and transferred to Guantánamo to face charges in the military commission system.

“Sit down,” the judge barked out a few times as defense lawyers assigned to the cases by the military and by the American Civil Liberties Union tried to slow the proceedings.

The lawyers said that Mr. Mohammed and the other men had not had enough opportunity to meet with them. As a result, they said, the detainees could not understand the implications of representing themselves with their lives potentially on the line. No one would prevail with the argument that the arraignment could not proceed as scheduled, Judge Kohlmann announced.

The Pentagon has been pressing to move its war crimes cases quickly after years of delays and legal setbacks. Critics, including a former chief military prosecutor, have said there is intense political pressure to start the trials by the end of the Bush administration.

The Pentagon general who has become the most visible advocate of the commission system, Thomas W. Hartmann, has repeatedly said that accelerating the filing and prosecution of charges is not motivated by politics.

Whatever the motivation, it was clear inside the wire of the new court complex in the bright sun here that the Guantánamo trial system had begun its most important test. Reporters from Italy, Pakistan, Britain and Canada mixed with Americans crowded into a press center for the first glimpse of Mr. Mohammed and his co-defendants.

The expansive new courtroom, built specifically for the Sept. 11 case, provided an austere setting. It is a big, windowless white room, decorated only with a large American flag and the seals of each of the American military branches.

The reporters and a handful of observers from human rights, military and legal groups sat in an observation room at the rear. Sound to the room was delayed 20 seconds, so people in the proceedings rose and sat on occasion before their voices could be heard.

In the courtroom, the prosecutors sat to the right at three long tables. On the left, there were six long tables, the final one unused. At the end of each table, a detainee sat, in a white prison uniform. Only one, Mr. Shibh, was shackled to the floor.

Mr. Mohammed, who is sometimes known as K.S.M., was at the first table. He could not, he explained, work easily with lawyers trained in the American legal system, which he described as evil. “They allow same sexual marriage,” he said, “and many things are very bad.”

He held his own in rapid fire back-and-forth with the judge dealing with the particulars of the proceedings, but then would retreat into another world. When Judge Kohlmann explained the risks of going through a death penalty case without a lawyer, Mr. Mohammed answered: “Nothing shall befall us, save what Allah has ordained for us.”

    Arraigned, 9/11 Defendants Talk of Martyrdom, NYT, 6.6.2008, http://www.nytimes.com/2008/06/06/washington/06gitmo.html

Marine acquitted in Haditha deaths

Thu Jun 5, 2008
12:41am EDT
Reuters
By Dan Whitcomb

LOS ANGELES (Reuters) - A U.S. Marine officer was acquitted by a military jury on Wednesday on charges he tried to cover up the shooting deaths of two dozen unarmed Iraqi men, women and children at Haditha in 2005.

In the first court-martial verdict from the high-profile case, Lt. Andrew Grayson was cleared at Camp Pendleton, California, after a five-day trial and less than half a day of deliberations by the jury.

Grayson, an intelligence officer, was not present when the 24 Iraqi civilians were shot to death near the scene of a roadside bombing at Haditha on November 19, 2005.

He was accused of ordering another Marine to delete photographs of the bodies from a computer and digital camera and lying to investigators.

The presiding judge, Maj. Brian Kasprzyk, dismissed an obstruction of justice charge against the 27-year-old native of Springboro, Ohio. Defense attorneys said in closing arguments that prosecutors bungled the investigation under intense media scrutiny.

Grayson, who served two tours of duty in Iraq, could have faced up to two decades in prison if convicted on all of the charges.

Two other Marines, including accused ringleader Staff Sgt. Frank Wuterich, still face courts-martial over the events at Haditha, which brought international condemnation.

Iraqi witnesses said angry Marines massacred unarmed civilians after a popular comrade, Lance Cpl. Miguel "TJ" Terrazas, was killed by a roadside bomb.

Defense attorneys said the civilians were killed during a pitched battle with insurgents in and around Haditha that followed the death of Terrazas.

Of the eight Marines originally charged by military authorities in December 2006, five have seen their cases dropped.

Wuterich's trial has been postponed until later this year pending an appeal of a discovery ruling. Lt. Col. Jeffrey Chessani is also awaiting trial.

(Editing by John O'Callaghan)

    Marine acquitted in Haditha deaths, R, 5.6.2008, http://www.reuters.com/article/newsOne/idUSN0426498320080605

No charges for Marines in Afghan civilian deaths

Fri May 23, 2008
3:49pm EDT
Reuters
By Kristin Roberts

WASHINGTON (Reuters) - U.S. Marines who killed Afghan civilians while responding to an ambush in March 2007 acted appropriately and in accordance with military rules, a senior Marine Corps commander said on Friday.

Lt. Gen. Samuel Helland, commander of Marine Corps forces in the Middle East, decided not to bring criminal charges against officers who led the special operations unit involved in the incident.

"The ... commander determined that their reaction to the ambush, to the vehicle-borne improvised explosive device attack, was within the current rules of engagement and in accordance with the laws of armed conflict and was proportionate and appropriate at the time," said Maj. Cliff Gilmore, spokesman for Marine Corps special operations.

On March 4, 2007, Taliban fighters ambushed a Marine convoy in eastern Afghanistan's Nangahar province. The Marines returned fire, killing as many as 19 civilians and wounding at least 24, the military has said.

Scores of civilians have been killed in raids by U.S.-led troops, according to Afghan officials. The deaths in 2007 sparked days of protests against the United States and Afghan President Hamid Karzai.

Even before the Marine Corps opened its investigation into the March incident, an Army colonel commanding forces in the area acknowledged the civilian killings and apologized for the "terrible mistake."

Marine spokesmen on Friday would not comment on the question of Marines' responsibility for the civilian deaths. They also would not say whether Helland made a determination on the issue.

Three officers will face administrative action. If some misconduct is determined in those proceedings, the officers face punishments ranging from a fine to removal from the military.

(Reporting by Kristin Roberts, Editing by Bill Trott)

    No charges for Marines in Afghan civilian deaths, R, 23.5.2008, http://www.reuters.com/article/newsOne/idUSN2328037120080523

Judge Drops General

From Trial of Detainee

May 10, 2008
The New York Times
By WILLIAM GLABERSON

In a new blow to the Bush administration’s troubled military commission system, a military judge has disqualified a Pentagon general who has been centrally involved in overseeing Guantánamo war crimes tribunals from any role in the first case headed for trial.

The judge said the general was too closely aligned with the prosecution, raising questions about whether he could carry out his role with the required neutrality and objectivity.

Military defense lawyers said that although the ruling was limited to one case, they expected the issue to be raised in other cases, potentially delaying prosecutions, including the death-penalty prosecution of six detainees at Guantánamo Bay, Cuba, for the Sept. 11 attacks.

Critics of the military commission system said Friday that the judge’s decision would provide new grounds to attack the system that they say was set up to win convictions.

The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution, scheduled for trial this month.

General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.

Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down.

Cmdr. Jeffrey D. Gordon of the Navy, a Pentagon spokesman, declined to comment on the ruling, saying senior Defense Department officials were reviewing it.

Reached at his office shortly after the decision was distributed inside the Pentagon, General Hartmann said he could not talk. His spokeswoman did not respond to requests for comment.

General Hartmann, who has been a controversial figure since his appointment last summer, is the legal adviser to the Pentagon official with broad powers over the war crimes system, Susan J. Crawford. She has the military title of Convening Authority of the Guantánamo war crimes cases.

Ms. Crawford has never made a public statement in her role.

General Hartmann has been the military official most publicly identified with prosecutions in recent months. It was he, for example, who announced the Sept. 11 charges and has publicly pressed prosecutors to move faster.

Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”

Pentagon officials could ask the judge to reconsider, could appeal to a special military appeals court created to hear Guantánamo cases or could replace General Hartmann.

General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly.

As convening authority, Ms. Crawford has powers over the entire war crimes system, including the power to approve or reject charges, to reach plea deals and to provide financial resources to the prosecution and the defense.

Among officials in the war crimes system, General Hartmann was assumed to have been acting on her behalf. But the judge did not find there was evidence suggesting she should be removed even from the single case.

Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.

    Judge Drops General From Trial of Detainee, NYT, 10.5.2008, http://www.nytimes.com/2008/05/10/us/10gitmo.html?hp

New Roadblocks Delay Tribunals

at Guantánamo

April 10, 2008
The New York Times
By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba — When military officials announced war crimes charges against six detainees for the Sept. 11 attacks two months ago, the move was part of an effort to accelerate the Bush administration’s sluggish military commission system, which has yet to hold a single trial.

But the Sept. 11 case immediately hit a snag. Military defense lawyers were in short supply, and even now, two months later, not one of the six detainees has met his military lawyer.

The delay in getting lawyers to those detainees, which largely grew out of a struggle within the Pentagon over legal resources, is indicative of the confounding obstacles facing this latest effort to expedite the military tribunals.

Since fall, when charges had been lodged against just three detainees, military officials have charged 12 more terrorism suspects. Yet there is a growing consensus among lawyers inside and outside the military that few of those cases are likely to actually come to trial before the end of the Bush administration.

“Speed is going to be very, very difficult to accomplish here,” said Stephen A. Saltzburg, a military law expert at George Washington University. “They may be overconfident that if they just push ahead, all the ducks will end up in a row. I don’t think that’s going to happen.”

The road to a trial is difficult in some cases partly because they involve potential death penalties and claims of torture by interrogators, issues that raise thorny legal questions that could take months or longer to sort out. But even comparatively simple cases without capital penalty issues are proceeding slowly.

In addition, just as the Pentagon is pushing to try cases in part to show the viability of the tribunal system, some civil liberties groups and defense lawyers are working to slow the pace, partly to keep the system from gaining legitimacy by eliciting testimony against terrorism suspects that could inflame Americans. They say they plan a dizzying array of challenges to try to prevent any significant number of what they call political trials.

They are particularly focused on the Sept. 11 case, which for more than six years has been expected to be the centerpiece of the Bush administration’s military commission system.

“The government can be assured that this will not be a quick show trial,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “Not if we can help it.”

The A.C.L.U. and the National Association of Criminal Defense Lawyers announced a plan last week to provide experienced defense lawyers for some detainees.

The standoff over the military lawyers for the Sept. 11 suspects grew out of a long-running dispute over legal resources at the Pentagon. The chief military defense lawyer for Guantánamo, Col. Steven David, said in an interview that he lacked enough experienced lawyers and other staff members.

Guantánamo military defense lawyers have long said they are not given resources by the Pentagon to match the investigative capability of the military prosecution, which draws on the Federal Bureau of Investigation, Central Intelligence Agency and other agencies. Until a handful of new military lawyers were appointed this week to represent Sept. 11 defendants, the military defense office was sharply outnumbered, with 15 defense lawyers to battle 31 prosecutors.

But Brig. Gen. Thomas W. Hartmann, an official of the Office of Military Commissions at the Pentagon, argued that the defense office was staffed well enough to have begun to defend the Sept. 11 case the day it was announced.

In a recent interview, General Hartmann, who has been pressing to move more quickly on the Guantánamo cases, made clear that he was impatient. “You have to get the train moving so you can get to a destination,” he said. “And the train hadn’t been moving.”

But even with enough lawyers, Colonel David said, there were countless impediments to quick trials, including questions about how the tribunals are to deal with detainees’ claims of torture. Lacking precedents and clear rules, he said, “there are issues within issues within issues.”

At a news conference here on Wednesday, the deputy chief military prosecutor, Col. Bruce A. Pagel, said that while the government wanted quick trials, the pace would largely be determined by military judges.

“There is just no predicting that,” Colonel Pagel said. “There are just too many variables.”

Each of the 14 cases now pending presents legal tangles. In one, the morass grew so thick that the judge scheduled pretrial proceedings after the date he had set for the trial, evidently realizing that there were too many unresolved issues to rush the case. In another, a detainee refused to leave his cell for an arraignment and had to be forcibly extracted.

On Wednesday, proceedings were delayed when a detainee complained that the tribunal translation was flawed. After that was resolved, the detainee, Ahmed Mohammed Ahmed Haza al Darbi, declared the proceeding political and refused to participate, adding, “History will record these trials as a scandal against you.”

Prosecutors planned this week to arraign two suspects, one who they say was a Qaeda paymaster and the other, they say, a propaganda chief. But that rudimentary step is not to go off as they had hoped. The case of the propaganda chief had to be postponed because his military lawyer had recently left the defense office, taking that case back to its starting point.

By chance, the alleged paymaster and the alleged propaganda chief were the first ones identified for war crimes trials by the Pentagon back in 2004. Yet all Guantánamo cases were derailed in 2006 when the Supreme Court struck down the Bush administration’s first war crimes system.

The first trial of a detainee under the new system is now scheduled for May 28. But defense lawyers for that defendant, Salim Ahmed Hamdan, who was a driver for Osama bin Laden, have filed nearly 30 legal motions, raising questions that included procedural issues and basic challenges to the Guantánamo system itself.

Andrea J. Prasow, one of Mr. Hamdan’s lawyers, said her experience in a comparatively simple Guantánamo case showed the extraordinary complexities that seem certain to entangle all of the battles here.

It may be possible, Ms. Prasow said, for one or two cases to be tried by the fall. But, she said, “I don’t see how it is remotely possible for the others to get under way.”

Some of the defense requests in Mr. Hamdan’s case show the kinds of issues that are tying prosecutors in knots. His lawyers have accused Pentagon officials of improperly influencing the prosecution by directing that charges be filed for political reasons and, the lawyers said, demanding “sexy” cases to attract public attention. They also claim that Mr. Hamdan is so psychologically damaged by the conditions under which he has been held that he is incapable of assisting his lawyers.

The Hamdan defense has worried prosecutors by winning the right to submit written questions to four detainees who were formerly held in secret C.I.A. prisons.

The request to question prisoners like Khalid Shaikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attack, brought strong objections from prosecutors who said it could be a national security threat.

When a military judge allowed very limited written questions, the prosecutors pleaded with him to reconsider. The judge stuck with his ruling.

But a major battle is expected if, as seems likely, Mr. Hamdan’s defense follows that request with a demand that those former C.I.A. detainees be called to testify in public.

J. Wells Dixon, a lawyer at the Center for Constitutional Rights, said the charges, which seek the death penalty against the six men charged with the 2001 attack, are so complex that defense teams in those cases will need months, if not years, to prepare. The center represented one of the six men in a case challenging his detention before the war crimes charges were filed.

“There is no possibility,” Mr. Dixon said, “that these cases are going to proceed to trial any time soon.”

General Hartmann said trials in any system could be subject to delays. But he said he had told military prosecutors and court officials not to get distracted as problems cropped up.

“My guidance to people,” he said, “is ‘keep moving’ and when the rocks start to fall on you, you move a little faster.”

    New Roadblocks Delay Tribunals at Guantánamo, NYT, 10.4.2008, http://www.nytimes.com/2008/04/10/washington/10gitmo.html?hp

Case Against U.S. Marine Is Dismissed

March 29, 2008
The New York Times
By PAUL von ZIELBAUER

CAMP PENDLETON, Calif. — Hours before his court-martial was set to begin, all charges were dismissed Friday against one of two remaining enlisted marines involved in a combat action that killed 24 Iraqis in Haditha in 2005, the Marine Corps announced.

With little public explanation, a Marine general in charge of the prosecution dropped the charges against Lance Cpl. Stephen B. Tatum, who was among four enlisted marines originally charged with murder in the case.

The charges against him had been reduced to involuntary manslaughter, reckless endangerment and aggravated assault for what prosecutors said was his role in shooting a group of unarmed women and children.

As a result of the dismissal, Corporal Tatum’s squad leader, Staff Sgt. Frank D. Wuterich, is the only remaining enlisted marine, and the only infantryman who was involved in the Haditha killings, still facing charges in the case. His trial is likely to begin this summer, lawyers said.

Charges against the other two enlisted marines were dropped previously.

A court-martial of an officer, Lt. Col. Jeffrey Chessani, in charge of the battalion Sergeant Wuterich and Corporal Tatum were part of, is to begin in late April. Colonel Chessani is charged with dereliction of duty for failing to properly investigate the Haditha killings.

The killings occurred on Nov. 19, 2005, when a squad of infantrymen from Third Battalion, First Marines, swept through a group of Iraqi homes in search of attackers after a roadside bomb exploded near their convoy, killing a marine. Over a period of hours, marines assaulted four Iraqi homes, killing 24 people, almost all unarmed.

    Case Against U.S. Marine Is Dismissed, NYT, 29.3.2008, http://www.nytimes.com/2008/03/29/world/middleeast/29haditha.html

Editorial

Unnecessary Harm

February 13, 2008
The New York Times

The Bush administration’s decision to put six detainees at Guantánamo Bay, Cuba, on trial before military tribunals and to seek the death penalty is both a betrayal of American ideals and simply bad strategy. Instead of being what they could and should be — a model of justice dispensed impartially, surely and dispassionately — the trials will proceed under deeply flawed procedures that violate this country’s basic fairness. The intense negative attention they will receive will do enormous damage to what is left of America’s standing in world opinion.

There is good reason to believe that Khalid Shaikh Mohammed and the five others may have been responsible for horrific acts. If convicted, they should be jailed for life, but that should happen under due process. Since Sept. 11, 2001, the administration has made clear that it wants to give people accused of terrorism as few rights as the Supreme Court will let it get away with.

This week’s announcement is a reminder that those rights will be so limited in the military tribunals that the credibility of any verdict will be undermined. Prosecutors will be able to use evidence obtained by improper means, including by torture. The rules will be stacked in the government’s favor, so hearsay evidence that would not be allowed in civilian courts may be allowed. Prosecutors may rely on classified evidence that the defendants will not be able to challenge. Defendants may not be allowed to call important witnesses.

Hanging over it all is the Kafkaesque fact that even if the defendants were somehow to beat the charges, they would not be set free. They would simply go back to being detainees in Guantánamo.

Trying these men this way is sure to raise international hackles. Injecting the death penalty, which is unpopular internationally in the best of circumstances, will only increase the bad feeling. Alienating the world, as the Bush administration still does not seem to understand, is not simply loutish behavior. It has very real implications for national security. The United States relies on other nations to monitor terrorism suspects and track down leads, and to apply pressure to nations like Iran. It relies on the support, or at least the absence of inflamed hatred, of the citizens of countries like Pakistan and Saudi Arabia to keep friendly governments in place. It is reckless to needlessly act in ways that outrage the rest of the world.

In this case, the offense is indeed needless. The administration can and should proceed against these six, and other terrorism defendants, in ordinary federal courts. That was what was done with Zacarias Moussaoui, Jose Padilla and others. Those trials protected the constitutional rights of the defendants, which protects the constitutional rights of every American. And, in the cases of Mr. Moussaoui and Mr. Padilla, resulted in convictions and long prison sentences that had credibility that verdicts in these current cases are sure to lack.

This is just what we feared would happen as a result of President Bush’s decision to go outside the law in dealing with terrorism: men who may well have committed crimes against humanity are being put on trial in a system so flawed that the results will seem unjust.

    Unnecessary Harm, NYT, 13.2.2008, http://www.nytimes.com/2008/02/13/opinion/13wed1.html

FACTBOX: Rules for Guantanamo war court

Mon Feb 11, 2008
1:04pm EST
Reuters

(Reuters) - U.S. military prosecutors sought murder and conspiracy charges on Monday against the alleged planner of the September 11 attacks, Khalid Sheikh Mohammed, and five other prisoners held at the Guantanamo naval base and will ask that they be executed if convicted.

Here are some of the rules for the special war tribunals where they face trial at the U.S. base in Cuba:

* They will be tried by a military judge who decides what evidence can be admitted for use at trial.

* A U.S. military lawyer will be assigned to represent each defendant. Civilian lawyers who receive security clearance from the U.S. military can join the defense team as advisers, but the U.S. government will not pay for their services or expenses.

* Death penalty cases will be tried by a jury made up of at least 12 U.S. military officers and two-thirds of them must agree in order to convict. A unanimous decision is required in order to impose the death penalty.

* Each conviction is to be automatically reviewed by a specially created military appeals court made up of at least three appellate military judges.

* Subsequent appeals can be filed in the U.S. District Court of Appeals in Washington, and then to the U.S. Supreme Court.
 

(Source: U.S. Department of Defense)

(Reporting by Jane Sutton, editing by Michael Christie)

    FACTBOX: Rules for Guantanamo war court, R, 11.2.2008, http://www.reuters.com/article/domesticNews/idUSN1164725520080211?virtualBrandChannel=10005

U.S. Presents Charges Against 6

in Sept. 11 Case

February 11, 2008
The New York Times
By WILLIAM GLABERSON

WASHINGTON — Six Guantánamo detainees who are accused of central roles in the terror attacks of Sept. 11, 2001, will be shown all the evidence against them and will be afforded the same rights as American soldiers accused of crimes, the Pentagon said Monday as it announced the charges against them.

Military prosecutors will seek the death penalty for the six Guantánamo detainees on charges including conspiracy and murder “in violation of the law of war,” attacking civilians and civilian targets, terrorism and support of terrorism, Brig. Gen. Thomas Hartmann of the Air Force, legal adviser to the Defense Department’s Office of Military Commissions, said at a Pentagon news briefing.

General Hartmann said it would be up to the trial judge how to handle evidence obtained through controversial interrogation techniques like “waterboarding,” or simulated drowning. Critics have said the harsh techniques, which are believed to have been used on several of the defendants, amount to torture.

As expected, the six include Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the Sept. 11 attacks, which killed nearly 3,000 people.

“The accused are, and will remain, innocent unless proved guilty beyond a reasonable doubt,” General Hartmann said.

Altogether, the defendants and others not yet charged are believed to have committed 169 “overt acts” in furtherance of the attacks, General Hartmann said. The charges are being translated into the native language of each of the accused and will soon be served on them, he said.

A Defense Department official said in advance of the announcement that prosecutors were seeking the death penalty because, “if any case warrants it, it would be for individuals who were parties to a crime of that scale.” The terror attacks, in which civilian airliners were hijacked and deliberately crashed into the World Trade Center and the Pentagon, were the deadliest in American history.

The decision to seek the death penalty will no doubt increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial. The death penalty is an issue that has caused friction for decades between the United States and many of its allies who consider capital punishment barbaric.

“The system hasn’t been able to handle the less-complicated cases it has been presented with to date,” said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.

In addition to Mr. Mohammed, the other five being charged include detainees who officials say were coordinators and intermediaries in the plot, among them a man labeled the “20th hijacker,” who was denied entry to the United States in the month before the attacks.

Under the rules of the Guantánamo war-crimes system, the military prosecutors can designate charges as capital when they present them, and it is that first phase of the process that is expected this week. The military official who then reviews them, Susan J. Crawford, a former military appeals court judge, has the authority to accept or reject a death-penalty request.

General Hartmann said he could not predict when actual trials would begin, but that pretrial procedures would take several months at least. He said the accused will enjoy the same rights that members of the American military enjoy, and that the proceedings will be “as completely open as possible,” notwithstanding the occasional need to protect classified information.

In no sense will the proceedings be secret, the general said. “Every piece of evidence, every stitch of evidence, every whiff of evidence” will be available to the defendants, General Hartmann said.

Some officials briefed on the case have said the prosecutors view their task in seeking convictions for the Sept. 11 attacks as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.

Even if the detainees are convicted on capital charges, any execution would be many months or, perhaps years, from being carried out, lawyers have said, in part because a death sentence would have to be scrutinized by civilian appeals courts.

Federal officials have said in recent months that there is no death chamber at the detention camp at the United States naval base at Guantánamo Bay, Cuba, and that they knew of no specific plans for how a death sentence would be carried out.

The military justice system, which does not govern the Guantánamo cases, provides for execution by lethal injection in death sentence convictions. But the United States military has rarely executed a prisoner in recent times.

The last military execution was in 1961, when an Army private, John A. Bennett, was hanged after being convicted of rape and attempted murder. Currently, there are six service members appealing military death sentences, according to a recently published article by a lawyer who specializes in military capital cases, Dwight H. Sullivan, a former chief military defense lawyer at Guantánamo.

General Hartmann said Mr. Mohammed is believed to have presented the idea of an airliner attack on the United States to Osama bin Laden in 1999 and then coordinated its planning.

The others being charged are Mohammed al-Qahtani, the man officials have labeled the 20th hijacker; Ramzi bin al-Shibh, said to have been the main intermediary between the hijackers and leaders of Al Qaeda; Ali Abd al-Aziz Ali, known as Ammar al-Baluchi, a nephew of Mr. Mohammed, who has been identified as Mr. Mohammed’s lieutenant for the 2001 operation; Mr. al-Baluchi’s assistant, Mustafa Ahmed al-Hawsawi; and Walid bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the hijackers.

Ramzi bin al-Shibh was supposed to have been a 20th hijacker, and made a videotape portraying himself as a martyr, General Hartmann said. But he was unable to obtain a United States visa, and so had to content himself with helping the eventual hijackers find flight schools and with carrying out financial transactions to further the plot, the general said.

Relatives of the Sept. 11 victims have expressed differing views of potential death sentences, with some arguing that it would accomplish little other than martyring men for whom martyrdom may be viewed as a reward.

But on Sunday, Debra Burlingame, whose brother Charles F. Burlingame III was the pilot of the hijacked American Airlines Flight 77 that was crashed into the Pentagon, said she would approve of an effort by prosecutors to seek the execution of men she blames for killing her brother. Ms. Burlingame said such a case could help refocus the public’s attention on what she called the calculated brutality of the attacks, which she said has been largely forgotten.

“My opinion is,” she said, “if the death of 3,000 people isn’t sufficient for a death penalty in this country, then why do we even have the death penalty?”

Lawyers said a prosecution move to seek the death penalty in six cases that will draw worldwide attention was risky. They said it would increase the stakes at Guantánamo partly by amplifying the attention internationally to cases that would draw intense attention in any event.

The military commission system has been troubled almost from the start, when it was set up in an order by President Bush in November 2001. It has been beset by legal challenges and practical difficulties, including a 2006 decision by the Supreme Court striking down the administration’s first system at Guantánamo. Although officials have spoken of charging 80 or more detainees with war crimes, so far only one case has been completed, and that was through a plea bargain.

Eric M. Freedman, a Hofstra University law professor who has been a consultant to detainees’ lawyers, said a decision to seek the death penalty would magnify the attention on each of the many steps in a capital case. Intense scrutiny, he said, “would be drawn to the proceedings both legally and politically from around the world.”

Some countries have been critical of the United States’ use of the death penalty in civilian cases, and a request for execution in the military commission system would import much of that criticism to the already heated debates about the legitimacy of Guantánamo and the Bush administration’s legal approach there, some lawyers said.

Tom Fleener, an Army Reserve major who was until recently a military defense lawyer at Guantánamo, said that bringing death penalty cases in the military commission system would bog down the untested system. He noted that many legal questions remain unanswered at Guantánamo, including how much of the trials will be conducted in closed, secret proceedings; how the military judges will handle evidence obtained by interrogators’ coercive tactics; and whether the judges will require experienced death-penalty lawyers to take part in such cases.

“Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba,” Major Fleener said.

Professor Glazier of Loyola said the military commission system was devised to avoid many of the hurdles that have slowed civilian capital cases. Still, he said, he expected intense scrutiny and criticism of such cases that could slow proceedings.

In any event, vigorous trial battles and appeals would probably mean that no execution would be imminent. “It certainly seems impossible to get this done by the end of the Bush administration,” Professor Glazier said.

General Hartmann said nothing to counter that impression. Asked whether executions would take place at Guantánamo or elsewhere, he noted that a defendant who is convicted will have the right to several levels of appeal. “So we are a long way from determining the details of the death penalty, and when that time comes, if it should ever come at all, we will follow the law at that time and the procedures that are in place at that time,” the general said.

David Stout contributed reporting from Washington.

    U.S. Presents Charges Against 6 in Sept. 11 Case, NYT, 11.2.2008, http://www.nytimes.com/2008/02/11/washington/11cnd-gitmo.html

U.S. Seeking Execution for 6

in Sept. 11 Case

February 11, 2008
The New York Times
By WILLIAM GLABERSON

Military prosecutors have decided to seek the death penalty for six Guantánamo detainees who are to be charged with central roles in the Sept. 11 terror attacks, government officials who have been briefed on the charges said Sunday.

The officials said the charges would be announced at the Pentagon as soon as Monday and were likely to include numerous war-crimes charges against the six men, including Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the attacks, which killed nearly 3,000 people.

A Defense Department official said prosecutors were seeking the death penalty because “if any case warrants it, it would be for individuals who were parties to a crime of that scale.” The officials spoke anonymously because no one in the government was authorized to speak about the case.

A decision to seek the death penalty would increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial.

“The system hasn’t been able to handle the less-complicated cases it has been presented with to date,” said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.

In addition to Mr. Mohammed, the other five to be charged include detainees officials say were coordinators and intermediaries in the plot, among them a man labeled the “20th hijacker,” who was denied entry to the United States in the month before the attacks.

Under the rules of the Guantánamo war-crimes system, the military prosecutors can designate charges as capital when they present them, and it is that first phase of the process that is expected this week. The military official who then reviews them, Susan J. Crawford, a former military appeals court judge, has the authority to accept or reject a death-penalty request.

A Pentagon spokesman declined to comment on Sunday.

Some officials briefed on the case have said the prosecutors view their task in seeking convictions for the Sept. 11 attacks as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.

Even if the detainees are convicted on capital charges, any execution would be many months or, perhaps years, from being carried out, lawyers said, in part because a death sentence would have to be scrutinized by civilian appeals courts.

Federal officials have said in recent months that there is no death chamber at the detention camp at the United States naval base at Guantánamo Bay, Cuba, and that they knew of no specific plans for how a death sentence would be carried out.

The military justice system, which does not govern the Guantánamo cases, provides for execution by lethal injection in death sentence convictions. But the United States military has rarely executed a prisoner in recent times.

The last military execution was in 1961, when an Army private, John A. Bennett, was hanged after being convicted of rape and attempted murder. Currently, there are six service members appealing military death sentences, according to a recently published article by a lawyer who specializes in military capital cases, Dwight H. Sullivan, a former chief military defense lawyer at Guántanamo.

One official who had been briefed on the war-crimes case said the charges were expected to be lodged against six detainees held at Guantánamo, including Mr. Mohammed, who is said to have presented the idea of an airliner attack on the United States to Osama bin Laden in 1999 and then coordinated its planning.

The official identified the others to be charged as Mohammed al-Qahtani, the man officials have labeled the 20th hijacker; Ramzi bin al-Shibh, said to have been the main intermediary between the hijackers and leaders of Al Qaeda; Ali Abd al-Aziz Ali, known as Ammar al-Baluchi, a nephew of Mr. Mohammed, who has been identified as Mr. Mohammed’s lieutenant for the 2001 operation; Mr. al-Baluchi’s assistant, Mustafa Ahmed al-Hawsawi; and Walid bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the hijackers.

Relatives of the Sept. 11 victims have expressed differing views of potential death sentences, with some arguing that it would accomplish little other than martyring men for whom martyrdom may be viewed as a reward.

But on Sunday, Debra Burlingame, whose brother Charles F. Burlingame III was the pilot of the hijacked American Airlines Flight 77 that was crashed into the Pentagon, said she would approve of an effort by prosecutors to seek the execution of men she blames for killing her brother. Ms. Burlingame said such a case could help refocus the public’s attention on what she called the calculated brutality of the attacks, which she said has been largely forgotten.

“My opinion is,” she said, “if the death of 3,000 people isn’t sufficient for a death penalty in this country, then why do we even have the death penalty?”

Lawyers said a prosecution move to seek the death penalty in six cases that will draw worldwide attention was risky. They said it would increase the stakes at Guantánamo partly by amplifying the attention internationally to cases that would draw intense attention in any event.

The military commission system has been troubled almost from the start, when it was set up in an order by President Bush in November 2001. It has been beset by legal challenges and practical difficulties, including a 2006 decision by the Supreme Court striking down the administration’s first system at Guantánamo. Although officials have spoken of charging 80 or more detainees with war crimes, so far only one case has been completed, and that was through a plea bargain.

Eric M. Freedman, a Hofstra University law professor who has been a consultant to detainees’ lawyers, said a decision to seek the death penalty would magnify the attention on each of the many steps in a capital case. Intense scrutiny, he said, “would be drawn to the proceedings both legally and politically from around the world.”

Some countries have been critical of the United States’ use of the death penalty in civilian cases, and a request for execution in the military commission system would import much of that criticism to the already heated debates about the legitimacy of Guantánamo and the Bush administration’s legal approach there, some lawyers said.

Tom Fleener, an Army Reserve major who was until recently a military defense lawyer at Guantánamo, said that bringing death penalty cases in the military commission system would bog down the untested system. He noted that many legal questions remain unanswered at Guantánamo, including how much of the trials will be conducted in closed, secret proceedings; how the military judges will handle evidence obtained by interrogators’ coercive tactics; and whether the judges will require experienced death-penalty lawyers to take part in such cases.

“Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba,” Major Fleener said.

Professor Glazier of Loyola said the military commission system was devised to avoid many of the hurdles that have slowed civilian capital cases. Still, he said, he expected intense scrutiny and criticism of such cases that could slow proceedings.

In any event, vigorous trial battles and appeals would probably mean that no execution would be imminent. “It certainly seems impossible to get this done by the end of the Bush administration,” Professor Glazier said.

    U.S. Seeking Execution for 6 in Sept. 11 Case, NYT, 11.2.2008, http://www.nytimes.com/2008/02/11/us/11gitmo.html

Marine Appears in Court for Haditha Case

January 9, 2008
Filed at 1:04 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

CAMP PENDLETON, Calif. (AP) -- A Marine appeared in a military court Wednesday but did not enter a plea on a manslaughter charge for his alleged involvement in the killing of 24 Iraqi men, women and children.

Staff Sgt. Frank Wuterich will appear for another hearing Feb. 25 in a case that has become the biggest U.S. criminal prosecution involving civilian deaths to emerge from the Iraq war.

Wuterich, 27, of Meriden, Conn., is accused of taking part in the massacre after a roadside bomb hit his convoy in Haditha, Iraq, in 2005. Wuterich contends he was acting under proper rules of engagement when he ordered his men to assault several houses, which they cleared with grenades and gunfire.

He could face up to 160 years in prison if convicted of voluntary manslaughter, aggravated assault, reckless endangerment, dereliction of duty and obstruction of justice.

The charges were filed late last month against Wuterich. More serious charges -- unpremeditated murder, as well as charges of soliciting another to commit an offense and making a false official statement -- were dismissed by the Marine Corps.

The killings occurred Nov. 19, 2005, in Haditha after a roadside bomb hit a Marine convoy, killing the driver of a Humvee and wounding two other Marines.

Wuterich and a squad member, Sgt. Sanick Dela Cruz, allegedly shot five men by a car at the scene.

At his preliminary hearing, Wuterich said that he regretted the loss of civilian life but that he believed he was coming under fire from the homes and was operating within the rules of engagement when he ordered his men into the buildings.

Four enlisted Marines were initially charged with murder in the case, and four officers were charged with failing to investigate the deaths. Charges against several of the men have been dropped, and none will face murder charges.

Marine Appears in Court for Haditha Case, NYT, 9.1.2008, http://www.nytimes.com/aponline/us/AP-Marines-Haditha.html