By Carol Rosenberg
The Buffalo News
WASHINGTON D.C. — The Pentagon on Wednesday cleared the way for a death penalty trial for five Guantanamo Bay captives charged with engineering the terrorist attacks of Sept. 11, 2001.
Retired Vice Adm. Bruce E. MacDonald, who is in charge of military commissions, signed off on the capital trial against alleged mastermind Khalid Sheikh Mohammed, 46, and four accused co-conspirators.
The men face charges of terrorism, hijacking aircraft, conspiracy and murder in violation of the law of war, among other charges, in the system set up by President George W. Bush within months of the attack, and then modified by President Obama in 2009.
If convicted, they could be sentenced to death using a method to be decided by Defense Secretary Leon E. Panetta or his successor.
The charges accuse the five of organizing the attacks — including funding and training the 19 men who hijacked four commercial airliners on 9/11 and crashed them into the World Trade Center, the Pentagon and a field in Shanksville, Pa., killing 2,976 people.
The lead trial attorneys are retired Army Col. Robert Swann and federal prosecutor Edward Ryan — the same two men designated by the Bush administration to prosecute the case.
Obama halted the previous trial, and Attorney General Eric H. Holder Jr. was initially determined to prosecute the five in Manhattan, not far from the site of the World Trade Center. But Holder reversed course a year ago after members of Congress raised a variety of protests — arguing that a federal prosecution would put an even larger al-Qaida bull's-eye on New York, would snarl traffic or would risk acquittal if a civilian judge or jury concluded that the evidence against them was obtained through torture.
Pentagon prosecutors have been preparing their case since then.
White House spokesman Jay Carney said the decision to go forward with the trial at Guantanamo Bay did not diminish Obama's desire to close the military prison there.
"There have obviously been obstacles in achieving that. But he remains committed to doing that," said Carney. "In the meantime, we have to ensure that Khalid Sheikh Mohammed and others who are accused of these heinous crimes are brought to justice. And a procedure is now under way to ensure that that happens."
The decision drew a rebuke from the American Civil Liberties Union.
The Obama administration "is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice," said Anthony Romero, the group's executive director. He said the war court was "set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial."
"Whatever verdict comes out of the Guantanamo military commissions will be tainted by an unfair process and the politics that wrongly pulled these cases from federal courts, which have safely and successfully handled hundreds of terrorism trials," he said.
All five men were interrogated by the CIA in secret overseas prisons — Mohammed was water-boarded 183 times, according to declassified CIA documents — before their 2006 transfer to Guantanamo. Once in Cuba, he bragged to a panel of U.S. military officers that he was responsible for the Sept. 11 attacks "from A to Z."
The chief prosecutor, Army Brig. Gen. Mark S. Martins, has said that by law no evidence derived through torture can be used at a Guantanamo trial.
The other four men who could face the death penalty if convicted in the joint trial are Waleed bin Attash, 33, and Ramzi Binalshibh, 39, both Yemenites; Mustafa Ahmad al-Hawsawi, 43, a Saudi; and Ali Abd al-Aziz Ali, 34, a Pakistani who is Mohammed's nephew and also known as Ammar al Baluchi.
The Pentagon's war court witness advocate, Karen Loftus, sent an email to Sept. 11 victims' families Wednesday advising them of the development. Some survivors and victims of the 9/11 attacks, selected through a lottery, will be invited to watch the proceedings at Guantanamo. Most will be directed to remote viewing sites being set up in New York, Massachusetts, New Jersey and Maryland that will show closed-circuit broadcasts of the proceedings.
Loftus also described the military jury that will hear the mass murder trial as "a panel of at least 12 members, whose function is analogous to jurors in a federal or state court. The case was also referred to as a joint trial, meaning that all five of the accused will be tried together, unless the military judge later determines that any or all of the accused should be tried separately."
A Pentagon-paid defense lawyer for Ali, accused of wiring money to the 9/11 hijackers, has argued his client should not face a capital trial because he isn't alleged to have killed or plotted to kill anyone.
"Mr. Ali would not be eligible for the death penalty if this case were tried in federal court," said attorney James Connell.
Under the reformed system of military commissions, prosecutors cannot use as evidence any statement that resulted from torture or cruel, inhumane or degrading treatment. But attorneys for the accused are nonetheless likely to make their treatment a central plank of any defense against the death penalty.
An arraignment will be held at the U.S. military prison at Guantanamo Bay, Cuba, next month, and all of the pretrial issues that surfaced in the earlier case will have to be litigated again, including the issue of self-representation and the mental health and capacity of Binalshibh and Hawsawi.
Each of the defendants is entitled to a military attorney and "learned counsel," a lawyer with experience in death penalty cases.
The Washington Post contributed to this report.
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