Justice May Be Served

Six Guantanamo detainees will face death penalty
Military prosecutors moving forward with cases against those accused of having central roles in the Sept. 11 terror attacks
By William Glaberson

THE NEW YORK TIMES


Monday, February 11, 2008

Military prosecutors have decided to seek the death penalty for six Guantánamo detainees who are set to be charged with having central roles in the Sept. 11 attacks, government officials who have been briefed on the charges said Sunday.

The officials said the charges would be announced at the Pentagon as soon as today and were likely to include numerous war-crimes charges against the six men, including Khalid Shaikh Mohammed, who has described himself as the mastermind of the attacks.

A Defense Department official said prosecutors were seeking the death penalty because "if any case warrants it, it would be for individuals who were parties to a crime of that scale."

The officials spoke anonymously because no one was authorized to speak about the case.

A decision to seek the death penalty would increase the international focus on the case and present new challenges to the troubled military commission system.

"The system hasn't been able to handle the less complicated cases it has been presented with to date," said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.

Among the other five suspects who will be charged are detainees who officials say were coordinators and intermediaries in the plot, including a man labeled the "20th hijacker" who was denied entry to the United States in the month before the attacks.

Under the rules of the Guantánamo war-crimes system, military prosecutors can designate charges as capital when they present them, and it is that first phase of the process that is expected this week.

The military official who then reviews them, Susan Crawford, a former military appeals court judge, has the authority to accept or reject a death penalty request.

A Pentagon spokesman declined to comment Sunday.

Some of those briefed on the case have said the prosecutors view their task, to seek convictions in the Sept. 11 attacks, as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.

If the detainees were to be convicted on capital charges, any execution would not be carried out for many months or even years, lawyers said, in part because a death sentence would have to be scrutinized by civilian appeals courts.

The military justice system provides for execution by lethal injection in death sentence convictions. But the U.S. military has rarely executed a prisoner in recent times — the last military execution was in 1961.

One official who had been briefed on the case said the charges were expected to be lodged against six detainees at Guantánamo, including Mohammed, who reportedly presented the idea of an airliner attack on the United States to Osama bin Laden in 1999 and then coordinated its planning.

The official identified the others to be charged as Mohamed al-Kahtani, the man officials have labeled the 20th hijacker; Ramzi Binalshibh, accused of being the main intermediary between the hijackers and leaders of al Qaeda; Ali Abd al-Aziz Ali, known as Ammar al-Baluchi, a nephew of Mohammed, who has been identified as Mohammed's lieutenant for the 2001 operation; Baluchi's assistant, Mustafa Ahmed al-Hawsawi; and Walid bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the hijackers.

The military commission system has been beset by legal challenges and practical difficulties almost from the start, when it was set up in an order by President Bush in November 2001.

Although officials have spoken of charging 80 or more detainees with war crimes, only one case has been completed, and that was through a plea bargain.

Tom Fleener, an Army Reserve major who was until recently a military defense lawyer at Guantánamo, said that bringing death penalty cases would bog down the system.

He noted that many legal questions remain unanswered at Guantánamo, including how much of the trials will be conducted in secret proceedings; how the military judges will handle any evidence obtained through coercive tactics; and whether the judges will require experienced death penalty lawyers to take part in such cases.

"Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba," Fleener said.