Topic: Terror Charges Imminent In 9/11 Case

Eventually, Col. Morris and other military lawyers persuaded the administration to allow defendants to engage civilian counsel, if they could pass security checks and cost the government nothing.
Nevertheless, the procedures first issued by the Bush administration allowed the military to exclude the defendant from his own trial, permitted introduction of any "probative" evidence, including statements made under torture, and forbid appeal to an independent court, making the entire process an exercise of the president's discretion.
Those dramatic deviations from existing military law led the Supreme Court to strike down the entire system in 2006. Congress then adopted a modified version of the commission plan, affording defendants some rights, such as appeal to the federal courts.
In addition to drafting rules, in 2002 Col. Morris also launched the war-crimes investigation, building links with the Justice Department's existing counterterrorism force and sending his own staff to Afghanistan to investigate al Qaeda.
"We were trying to work in two veins," Col. Morris says, tying material from the Justice Department files to evidence in Afghanistan, while developing new leads from prisoners and records held there. Unfortunately, he says, when his investigators got to the field, they found "a lot of people but no key leaders."
That's because the administration had decided to hide those leaders away in overseas prisons for interrogation by the Central Intelligence Agency -- making them unavailable to military prosecutors planning for war-crimes trials.
Extraordinary Criminality
Col. Morris continued to sketch out his vision of how military commissions should proceed. In an August 2002 memorandum to the Pentagon general counsel's office, he urged the administration to launch the commissions with a trial of the most notorious al Qaeda prisoners, arguing that only evidence of extraordinary criminality could justify such a radical departure from traditional due process.
"We must try people of sufficient consequence to the war on terrorism that it vindicates or reinforces the reasons for commissions. If only small fry are taken to trial, then the question again will arise of why commissions at all," he wrote.
The memo proposed a joint trial of representative al Qaeda figures, people who could be linked to "shocking criminality."
Another reason for a joint trial, he wrote, was to open the door to possible acquittals, should the commission consider some of the defendants' criminality below the threshold for conviction. "If, e.g., three of 22 accused were acquitted, as happened at Nuremberg," the commissions' legitimacy might be enhanced, demonstrating "the fundamental fairness of the forum."
By the time of the August 2002 memo, however, the die already had been cast. Col. Morris reported to the Army's judge advocate general, Maj. Gen. Thomas Romig, and both assumed that the Army would run military commissions, as it had in World War II. But rather than leave them in the hands of the Army's legal establishment, the administration preferred to supervise them directly from the Pentagon general counsel's office, headed by William J. Haynes II, a confidant of Mr. Addington.
Eventually, Army officials got the message and disbanded Col. Morris's team.
"The Army contingent we had set up had become superfluous," Col. Morris says. "I should have realized that in the spring of 2002. It was wasted work."
The military commission program, meanwhile, repeatedly stumbled through legal setbacks and internal disarray. Prosecutors complained that intelligence agencies refused to share their information, fearing its eventual disclosure in public trials. The first chief prosecutor, Col. Fred Borch, was reassigned in 2004 after several junior prosecutors claimed that cases were being rigged. An internal probe found no wrongdoing but reported management problems.
Charges against a handful of defendants were issued later that year, but instead of depicting "shocking criminality," the government had instead charged such peripheral figures as Osama bin Laden's driver and an Australian kangaroo skinner who carried a rifle for the Taliban. Such small players were chosen in the mistaken assumption they would yield easy convictions through plea bargains and confessions.
But the prisoners' military defense lawyers, bolstered by civil-rights groups and law professors, mounted a vigorous challenge to the system, culminating in the Supreme Court's 2006 decision striking it down as outside the president's authority. President Bush, then having to justify the military commissions to Congress, transferred Khalid Sheikh Mohammed and 13 other "high-value" detainees to Guantanamo for trial. Lawmakers then authorized a modified version of commissions to proceed.
New Legislation
The new legislation didn't end controversy over the commission plan, however. Defense lawyers maintained that it still fell short of providing for fair trials, and internal disarray continued, leading to the resignation of the chief prosecutor, Col. Morris Davis, in October. Col. Davis said the Pentagon had structured the prosecution in a way leaving it open to political influence, a charge rejected by a Pentagon probe.
Col. Morris reported for duty on Nov. 13, 2007 -- exactly six years after President Bush issued the first order authorizing commissions. Taking charge of a team of about two dozen attorneys from the Defense and Justice departments, he says he found a place in vigorous debate over key issues sure to arise in military commission trials: "What constitutes a conspiracy? When did the war with al Qaeda start? What constitutes combatancy?"
Col. Morris says he worked on getting prosecutors to adopt consistent positions on such issues. While he says he encourages debate, "that debate can't go on endlessly."
Some issues, however, elude easy resolution. Many military lawyers -- including Col. Morris's predecessor, Col. Davis -- have characterized certain interrogation techniques such as waterboarding as torture. The method, used on Mr. Mohammed and two other prisoners, the government says, simulates drowning.
Col. Morris declines to say whether he considers it torture -- or to rule out introducing evidence obtained through it.