9/11 suspects are arraigned

The Baltimore Sun

Khalid Sheikh Mohammed, the self-styled mastermind of the Sept. 11 terrorist attacks, rejected his legal team and asked to represent himself in his first public court appearance yesterday, proclaiming that he intended to plead guilty and was aware that he faced the death penalty.

"Yes, this is what I wish, to be a martyr for a long time," he told a military judge at the U.S. naval base at Guantanamo Bay, Cuba, according to news reports. "I will, God willing, have this, by you."

Nearly seven years after suicide bombers killed nearly 3,000 Americans in the worst attack on U.S. soil in history, the final stage of prosecution against him and four alleged co-conspirators finally began.

But as the world's attention is again drawn to Mohammed's fiery declarations, lawmakers have begun in earnest to ponder whether the military tribunals before which he and up to 80 others are to be tried can effectively and fairly bring them to justice.

"Let's face facts. We've had seven years, and we haven't been able to get a single military commission done," said Andrew C. McCarthy, a former assistant U.S. attorney who led several successful federal prosecutions of international terrorists, including the men who carried out the first World Trade Center bombings in 1993.

Under the most optimistic government predictions, Mohammed, who has confessed to orchestrating the plane crashes into the World Trade Center and the Pentagon in 2001, as well as personally beheading Wall Street Journal reporter Daniel Pearl and committing other acts of terrorism, will not be tried until at least September.

Although civil liberties and human rights groups say the long-delayed process has weakened the resolve of defendants and discredited the prosecution, many officials involved in the creation of the tribunals expressed hope that as the world is able to witness the proceedings, people will become more comfortable with the prosecutions.

The Pentagon flew more than 60 journalists in to witness yesterday's hearing, and the five men spoke frequently to one another throughout the arraignment, occasionally striking defiant tones and appearing to take orders from Mohammed, who looked much thinner than in a widely circulated photo taken after his capture in Pakistan in 2003.

He was calm, wore a turban, thick glasses and a near-footlong, bushy gray beard, and appeared actively engaged in the proceedings, at one point criticizing a courtroom sketch artist's drawing of his nose, saying it was too big, according to news accounts.

Mohammed chanted verses from the Quran and said that he planned to decline any legal representation, adding that he had "put my trust" in God.

The judge in the case, Marine Corps Col. Ralph Kohlmann, granted Mohammed's request over the objections of defense attorneys who argued that he was unaware of the implications of his decision, according to news accounts. Yesterday's hearing was similar to an arraignment in civilian court, in which defendants hear the charges against them and are asked about their legal representation.

The other defendants were Waleed bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali and Mustafa Ahmad al-Hawsawi, all of whom are alleged to have helped either to train or finance the Sept. 11 hijackers.

But for a few exceptions, other detainees are not expected to go before a tribunal until a new U.S. president has been elected.

"When there's a change of administration, we would expect to be asked for an analysis of this whole process," Col. Larry Morris, the chief prosecutor of the Guantanamo military commissions, said in an interview. McCarthy is among a growing group of legal scholars, former military officials, civil liberties advocates and members of Congress on both sides of the political spectrum who believe, often for very different reasons, that the current U.S. system for prosecuting the terrorism suspects being held at Guantanamo should be scrapped.

For many, even those who believe that the tribunals could work if implemented properly and without political interference, the fundamental challenge is one of international legitimacy. Skepticism, many argue, is only likely to rise as Congress continues to probe the use of harsh interrogation techniques on detainees, including waterboarding, which critics regard as torture. And the Supreme Court is expected this month to again rule on whether Congress overreached in a 2006 law by stripping the detainees of the ability to challenge their detention in U.S. courts.

If the trials seem rigged to the outside world, it could further stain the country's reputation abroad and lead U.S. allies to stop turning over suspected terrorists or sharing intelligence, McCarthy and others say. "It's very, very important that both domestically and internationally, the results of these trials, wherever they are and whatever the results are, are seen as being legitimate," said John Hutson, a former judge advocate general of the Navy and current dean of the Franklin Pierce Law Center.

Debate is beginning to focus on replacing the military tribunals, either by moving the prosecutions into an existing U.S. legal system or by creating a National Security Court. This week, two former federal prosecutors, a sitting federal judge and human rights advocates argued that the best way to handle the situation would be to try the men in U.S. District Court or through the Uniform Code of Military Justice.

James J. Benjamin Jr., a former federal prosecutor who testified at a hearing Wednesday, said that in more than 120 terrorism cases that those courts have handled in the past 15 years, the government was able to prove its case and earn convictions most of the time without compromising national security, according to a study he co-wrote.

Benjamin said the traditional concerns - including whether soldiers on the battlefield would be required to read captives Miranda warnings; chain of custody problems for evidence; and rules that govern a defendant's right to potentially exculpatory evidence - were unfounded based on trial histories.

The willingness of a federal court to shield intelligence agents by allowing them to testify under assumed names - notably in the case of "American Taliban" John Walker Lindh - shows that federal courts can create legal ways to avoid disclosure of classified information, he said. The Classified Information Procedures Act is designed for just such a purpose, he said in the hearing Wednesday.

But defense attorneys in that case attempted to suppress statements that Lindh made after his capture on the grounds that he had not been read his rights by the military and that his confessions were based on coercive interrogations by special operations forces. Lindh pleaded guilty before the court could rule on that question, but Benjamin said in the report that the courts have historically applied such rules "in a common sense manner, and there is every reason to expect such an approach if and when the issue is presented in a future case."

Critics say that sort of supposition is wishful thinking.

McCarthy said an effort to move the cases to federal courts would present scores of problems. Putting intelligence agents on the stand would open them to all manner of questions about their sources and methods, and having to disclose where and when the United States might have intercepted enemy communications would alert them that they were or are under surveillance, he said.

In a research paper he wrote last year, he pointed to an example when prosecutors in New York had to release a list of 200 co-conspirators in the 1993 World Trade Center bombings, evidence shown in a later trial to have quickly made its way to Osama bin Laden.

For that reason, he and Brookings Institution fellow Benjamin Wittes, who recently wrote a book about the government's handling of the terror cases, support creating a National Security Court that would assuage outside concerns about the independence of the system without compromising intelligence gathering.

"The current administration's reliance on a pure law of war model for detentions has been a fateful error," Wittes said Wednesday. "But the attempt to revert to a prosecutorial model for disabling terrorists would supplant that error with a system unsuited to the challenges we currently face as a society. The right answer is - as it has been since Sept. 11 - to design the detention system we need to handle the unique situation of global jihadist terrorism."


The Associated Press contributed to this article.

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