New York Times
January 12, 2007
By David Johnston and Neil A. Lewis
WASHINGTON, Jan. 11 — The Bush administration has set up a secret war room in a Virginia suburb where it is assembling evidence to prosecute high-ranking detainees from Al Qaeda including the man accused of being the mastermind of the September 2001 attacks, Khalid Shaikh Mohammed, government officials said this week.
The effort to sift the classified files of the Pentagon, F.B.I., C.I.A. and other intelligence agencies amounts to the first concrete steps that the government has taken to press ahead with war crimes trials of high-level terror suspects under a plan announced by President Bush in a speech last September.
At the time, Mr. Bush said that Mr. Mohammed and 13 other high-level terror suspects had been transferred from secret prisons around the world to the military detention center at Guantánamo Bay, Cuba, where they would be held pending trial.
The preparation of cases against the high-value operatives appears to rebut many who doubted that Qaeda suspects like Mr. Mohammed would ever be brought to trial. Critics in Congress and human rights groups had asserted that such trials would not be feasible because they would expose harsh interrogation techniques used by the Central Intelligence Agency.
The officials who discussed the preparations have been briefed on the effort in detail and represented several agencies. They declined to speak on the record about deliberations in advance of criminal prosecutions involving national security.
The prosecution team for the Qaeda defendants will be a mix of military and civilian prosecutors. Some officials said no decision had been made about who would lead each prosecution, but others said the trial of Mr. Mohammed would probably be undertaken principally by Justice Department lawyers, who would run the prosecution in a military courtroom in Guantánamo.
Mr. Mohammed, whose alleged role in the Sept. 11 attacks would make him the centerpiece of the government’s effort to bring terrorists to justice in a court of law, could be held responsible for about 3,000 deaths in the attacks, officials have said.
The prosecution of high-value detainees is separate from the long planned trials of lower-level Qaeda figures, some of whom have been at Guantánamo since 2002 and who are expected to be tried before the more important terrorist suspects.
However, both high- and low-level suspects will be tried under the same rules, which are contained in legislation approved in October.
Officials said that they were hoping to bring the first charges against leaders of Al Qaeda this summer or fall and that trials could get under way in early 2008. The current plans are to use the new trial procedures first against some of the lesser Guantánamo defendants as kind of a test run beginning this summer.
Those trials would involve some of the detainees who had already been charged under the previous system of military commissions that was struck down by the Supreme Court.
The initial trials of detainees held at Guantánamo will not carry the possibility of a death penalty. But officials said that they expected to seek to have some of the senior Qaeda officials executed if convicted.
A team of lawyers from the Justice and Defense Departments, along with civilian and military investigators, has begun poring over intelligence files and interrogation reports, about Mr. Mohammed’s role in the Sept. 11 attacks and other potentially prosecutable crimes, like the killing of a reporter for The Wall Street Journal, Daniel Pearl, and other terror plots, including an aborted plan in 2003 to use smuggled explosives to blow up gas stations, railroad tracks and a bridge in New York.
According to the final report of the independent commission that investigated the 2001 attacks, Mr. Mohammed acknowledged under interrogation that he was a major planner of the 9/11 plot. The report said that Mr. Mohammed first proposed the airliner attacks to Osama bin Laden and supervised the core group responsible for the hijackings.
Other prosecutions, like the cases related to the attack in 2000 on the Navy destroyer Cole in Yemen which killed 17 sailors, are likely to be led by military lawyers.
The Qaeda detainees at Guantánamo who the authorities have said were involved in planning the Cole attack include Abd al-Rahim al Nashiri, the accused mastermind, and Walid bin Attash, known as Khallad, who worked with Mr. Nashiri.
In preparation for the trials, the Justice Department has been quietly recruiting lawyers from the ranks of experienced terrorism prosecutors, mainly in New York and Virginia.
The new war crimes trials will operate according to rules modeled after the military justice system which were approved in legislation known at the Military Commission Act, which was signed into law last fall. The law has been criticized by some Democrats in Congress and human rights groups who say the procedures are flawed because they tilt in the government’s favor.
Prosecutors could use hearsay evidence or second-hand testimony, but could not use information obtained under torture. Even so, that would mean virtually any information obtained by the C.I.A would appear to be admissible because, under Justice Department legal opinions, none of the harsh techniques amounted to torture.
At their trials, the accused would have the right not to testify and would have the opportunity to present evidence and cross-examine witnesses against them. The trials would be open unless a military judge determined that they should be closed to protect classified information. Defendants would have the right to review the evidence to be used against them.
The C.I.A. indicated in court filings last November how it hopes to deal with efforts by defendants to bring up the issue of their interrogations. In a case involving one of the 14 high-level Qaeda detainees, the intelligence agency asked a federal judge to rule that the prisoner could not describe details of his confinement because of national security concerns. No ruling has yet been issued.
The case involves Majid Khan, a Pakistani who authorities have said was selected by Mr. Mohammed in 2002 to take part in a possible attack in the United States.
When civil liberties lawyers filed a petition on Mr. Khan’s behalf in federal court in Washington, the C.I.A. submitted an affidavit saying that if specific interrogation techniques were disclosed, “It would permit terrorist organizations to adapt their training to counter the tactics that C.I.A. can employ in interrogations.”