Terror Charges Imminent In 9/11 Case

[Team Infidel]

Wall Street Journal
February 11, 2008
Pg. 1

By Jess Bravin
GUANTANAMO BAY, Cuba -- Tomorrow, the U.S. plans to unveil a sweeping series of criminal charges designed to showcase the global conspiracy behind the suicide-hijackings of Sept. 11, 2001. The terror attacks hurtled America into a new era of war overseas and constitutional struggle at home.
The government will ask that all six defendants be put to death, including al Qaeda commander Khalid Sheikh Mohammed, officials say. According to a transcript of a Guantanamo detention hearing, he confessed to plotting 9/11 as well as to a host of other crimes. These include the 1993 World Trade Center attack and shoe bomber Richard Reid's plot to blow up a trans-Atlantic airliner in December 2001.
It could be months, or even longer, before a trial begins. When it does, it will unfold in a specially designed courtroom here, within a tent city called Camp Justice. It will house the prosecution, defense lawyers, journalists and others. Survivors and relatives of 9/11 victims will be invited to watch proceedings through closed-circuit broadcasts in the U.S. Wider public access is unlikely, officials say.
The Pentagon did not respond to requests for comment yesterday.
For Col. Lawrence J. Morris, the newly installed Guantanamo chief prosecutor, the day is a long time coming. Six years ago, as head of the Army's criminal-law branch, he had been assigned to plan the first military commissions -- a process designed to prosecute suspected terrorists captured around the world. At that time, he proposed a high-profile public trial that would lay bare the scope of al Qaeda's alleged conspiracy while burnishing the ideals of American justice.
Instead, people familiar with the process say, he was sidelined by the Bush administration. Senior officials had decided to interrogate captured al Qaeda leaders in secrecy rather than swiftly bringing them to justice -- a tactic they figured might help stave off future attacks. That left Guantanamo prosecutors to pursue minor characters who might quickly plead guilty.
But instead of racking up rapid convictions, the prosecution effort stumbled through internal disarray and legal setbacks. Meanwhile, Guantanamo's reputation was stained by allegations of inmate abuse, erroneous detentions and a sense that the U.S. saw itself free to act outside existing law.
Whether the outcome would have been different if Col. Morris had prevailed in 2001 and 2002 is hard to know. But the Bush administration, after being hit with a series of adverse legal decisions, including one landmark Supreme Court case in 2006, decided the time had come to bring the big cases to trial.
Col. Morris returned in November to oversee the prosecutions, and in the process potentially rescue a central part of the president's legacy.
"It's a second chance to make it right," says retired Col. Paul Hutter, who worked on Col. Morris's original team and today is general counsel at the Department of Veterans Affairs.
Complex legal, political and practical hurdles loom. The commission system remains under court challenge and many central issues -- such as the access defense counsel can have to government records -- remain undecided. The time elapsed since 9/11 has clouded some memories and seen some records -- such as tapes of interrogations of defendants -- destroyed or lost.
Col. Morris says that like the epic 1945 Nuremberg trials, which documented the Nazi regime's crimes, the Guantanamo proceedings will reveal the scope of the al Qaeda conspiracy.
"The biggest thing you will see is the sophistication of the al Qaeda operation," says Col. Morris, 51 years old. If anyone still thinks the 9/11 terrorists just happened to be lucky amateurs, they will see "the methodical, military-like fashion" by which al Qaeda planned and executed the attacks.
In November 2001, President Bush first announced plans to prosecute foreign terrorists before military commissions. Many expected that Osama bin Laden and his lieutenants, should they survive the American onslaught on their Afghan hideouts, would rapidly be brought before tribunals for trial, conviction and all-but-certain execution.
Plunging into Records
Col. Morris was assigned to plan the first U.S. military commissions since World War II, when hundreds of Axis prisoners were tried for war crimes. Soon he was plunging into dusty records at the National Archives in search of records from the 1940s. He began drafting trial regulations and debating points of law with architects of the administration's broad vision of presidential power. He compared legal views with David Addington, now chief of staff to Vice President Dick Cheney, and John Yoo, the young legal scholar who drafted Justice Department opinions sanctioning harsh treatment of enemy prisoners.
That early legwork revealed a gulf between career military lawyers and the administration. Col. Morris and other uniformed lawyers wanted to base trials of alien terrorism defendants on traditional court-martial rules. That way, defendants would be afforded due process similar to that of civilian courts -- including the right to confront prosecution witnesses and attend all trial proceedings. The White House believed convictions would be easier to obtain without giving defendants such rights.
John Bickers, then an Army major working for Col. Morris, says the officers feared the administration's initial vision of commissions "would look like a show trial." At those meetings, Col. Morris "was a devout and a passionate fighter for fairness, for real meaningful rights for the accused," says Mr. Bickers, now a law professor at Northern Kentucky University.
Col. Morris says a senior Justice Department official initially saw no need for defendants to have defense counsel at all. Col. Morris believes that for a trial to be fair, defendants should be able to choose their own counsel.
"If you want Ramsey Clark to raise hell for you, that's fine," he says, referring to the former U.S. attorney general who has made a second career of representing such pariahs as Slobodan Milosevic and Saddam Hussein.

 

[Team Infidel]

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.