Military lawyers assigned to defend accused 9/11 ploitters

WASHINGTON — The chief defense counsel for the war crimes court at Guantánamo Bay on Monday appointed four U.S. military officers to defend four alleged co-conspirators facing possible death-penalty charges in the 9/11 attacks.

But Army Reserves Col. Steve David said he had not yet formally assigned a lawyer to defend their alleged ringleader, reputed al Qaeda kingpin Khalid Sheik Mohammed.

The assignments had been seen as a key obstacle in the Pentagon’s effort to move forward with its showcase Military Commissions prosecution — a complex, six-captive capital case alleging they organized the Sept. 11, 2001 attacks.

CHARGES FILED

The Pentagon prosecutor swore out charges against the six on Feb. 11. Now a Bush administration appointee is deciding whether to go forward and whether to make execution the ultimate penalty — if the men are convicted in the case that lists the names of 2,973 victims in the charges sheets.

”It’s daunting,” said Navy Reserves Cmdr. Suzanne Lachelier, a former San Diego federal public defender called to service and now assigned to defend Ramzi bin al Shibh.

She also, separately, had been assigned another commissions case — to defend a Sudanese man who allegedly served as Osama bin Laden’s bodyguard, driver and cook, Ibrahim al Qosi.

But the 9/11 case, she said, presented “the ultimate challenge for a criminal defense attorney when a defendant is facing so much hatred from the general public — and political backlash, to say the least.”

Bin al Shibh, who was captured on Sept. 11, 2002, is accused of organizing the German-based cell of the suicide squads that hijacked the commercial airplanes that struck the World Trade Center, Pentagon and a Pennsylvania field a year earlier.

KEY INTERMEDIARY

A citizen of Yemen, he has been described as a key intermediary between some of the hijackers and leaders of al Qaeda, in effect meaning he served as the 9/11 control officer. He also has been described as a key lieutenant to Mohammed.

Mohammed and the four other former CIA-held captives accused in the case have never seen attorneys — military or civilian — and are held in segregation as special ”high-value detainees” at the remote prison camps in southeast Cuba.

They arrived there in September 2006 after years in secret U.S. custody overseas.

Now it will be up to the attorneys to get special intelligence clearances and meet with their clients to see whether they will cooperate with their U.S. military lawyers — who are provided to them free of charge under the Military Commissions Act that created the war court in 2006.

David, in civilian life a judge in Boone County, Ind., near Indianapolis, made the appointments days after several civilian legal groups disclosed that they were organizing a defense fund and recruiting teams of top lawyers with death-penalty experience to help in the cases of Mohammed and the others accused at the war court.

The American Civil Liberties Union is spearheading the effort.

OTHER DEFENDANTS

Of the other former CIA-held detainees facing proposed capital charges:

• Walid bin Attash was assigned Navy Reserves Lt. Cmdr. James Hatcher, who has death penalty defense experience as a South Carolina federal public defender. Bin Attash, a Saudi-raised Yemeni, allegedly selected and trained some of the hijackers and allegedly scouted U.S. aircraft as early as 1999 in Malaysia as part of the plot.

• Ali Abd al Aziz Ali was assigned Navy Lt. Cmdr. Brian Mizer, who is already lead lawyer in the non-capital case against Osama bin Laden’s former Afghanistan driver, Salim Hamdan — whose trial is expected to start in June and last at most two weeks. Aziz Ali, known as Ammar al Baluchi, has been described as nephew of Khalid Sheik Mohammed who allegedly sent about $120,000 to the hijackers to cover, among other things, flight training at U.S. flight schools.

• Azzi Ali’s assistant, Mustafa al Hawsawi, was assigned Army Reserves Maj. John Jackson as his defense counsel.

Only one of the six had already been assigned an attorney.

He is Mohammed al Qahtani, a Saudi who has been held by the military, not the CIA, but was subjected to a special course of interrogations approved by Defense Secretary Donald Rumsfeld.

It was not known whether, as of Monday, his lawyer, Army Lt. Col. Bryan Broyles had yet to meet with him.

SPECIAL ACCESS

The others need special access from the military to see their clients because the CIA has declared as classified the details of their interrogation and detention at so-called ”black sites” overseas.

Lachelier said that David had assured the 9/11 defense counsels that they would get a second uniformed military defense counsel — known as ”a second chair” — as well as an investigator and paralegal to work on the case.

In addition, the ACLU was expected to offer each a civilian co-counsel with outside legal resources to assist in the defense.

Rep. Issa: 9/11 was ’simply’ a plane crash.

During a hearing Tuesday on an aid bill for sick New Yorkers, Rep. Darrell Issa (R-CA) callously dismissed the 9/11 attacks as “simply” a plane crash. The New York Daily News reports:

The California congressman who called the Sept. 11 attacks “simply” a plane crash ran for cover Wednesday under a barrage of ridicule from fellow Republicans, first responders and victims’ families.

San Diego GOP Rep. Darrell Issa was under siege for suggesting the federal government had already done enough to help New York cope with “a fire” that “simply was an aircraft” hitting the World Trade Center.

Rep. Peter King (R-NY) sharply criticized his fellow conservative’s remarks, stating, “New York was attacked by Al Qaeda. It doesn’t have to be attacked by Congress.” In his statement yesterday, Issa tried to insist that he only “asked tough questions about the expenditures” during the hearing.

Hamdan’s lawyer says advisor is exerting illegal sway for political ends

In a motion to dismiss the case against Bin Laden’s ex-driver, he says his Navy superior is pursuing election-year convictions when he is supposed to be impartial.

MIAMI — The lawyer for Salim Ahmed Hamdan, Osama bin Laden’s former driver, on Thursday accused U.S. officials of trying to orchestrate war-crimes convictions for election-year political gain.

In his motion for dismissal of the case against Hamdan, Navy Lt. Cmdr. Brian Mizer accused Brig. Gen. Thomas Hartmann — legal advisor to the White House official overseeing terrorism trials at Guantanamo Bay, Cuba — of exercising “unlawful command influence” over both the prosecution and defense. Lawyers participating in the tribunals are members of the U.S. military, and all are subordinate in rank to Hartmann.

More than a dozen suspected senior Al Qaeda figures are among the 280 prisoners currently at Guantanamo, including self-proclaimed Sept. 11 mastermind Khalid Shaikh Mohammed.

In his 97-page motion, Navy Lt. Cmdr. Brian Mizer cited what he said were inappropriate comments and actions by Hartmann and political appointees in the Guantanamo process — including its top official, Susan J. Crawford, the convening authority.

Hartmann “has so closely aligned himself with the prosecutorial function that he cannot continue to provide the requisite impartial advice to the convening authority,” Mizer said.

Hartmann did not return messages seeking comment. But a spokesman for the tribunals, Army Maj. Robert D. Gifford, said the general had not seen the motion and would have nothing to say immediately about its allegations.

“While the Office of Military Commissions receives notice of court filings, we are not aware if such a motion has even been filed with the trial court,” Gifford said. “Regardless, the proper place for the resolution of any legal matter is in the courtroom.”

In the last six years, only one case against a detainee at Guantanamo Bay has reached its conclusion. Crawford, who served as Pentagon inspector general when Dick Cheney was Defense secretary, in early 2007 facilitated the plea bargain that freed Australian David Hicks.

The move was seen by many as a favor by the Bush administration to Australian Prime Minister John Howard, whose failure to free Hicks was hampering his reelection battle — which he eventually lost.

The former chief prosecutor at Guantanamo, Air Force Col. Morris D. Davis, quit in October after complaining that Hartmann was bringing political pressure to bear on the legal process.

The motion filed Thursday said that Pentagon General Counsel William J. Haynes II had effectively ordered Davis to ensure that the terrorism suspects all were found guilty. “We can’t hold these men for six years and have acquittals. We have to have convictions,” Haynes is quoted as saying when Davis mentioned that some defendants at the World War II Nuremberg trials were acquitted.

Hartmann took over as legal advisor in July and immediately began acting as “de facto chief prosecutor,” Mizer wrote in his motion.

Omar Khadr: A most peculiar young offender

 He should be dealt with here in Canada, as a juvenile who was involved in terrorism

The civilized world condemns the recruitment of child soldiers. Yet Canada sits quietly by as one of its citizens, Omar Khadr, is prosecuted by the United States for war crimes he allegedly committed at age 15 as a member of al-Qaeda.

It is impossible to square. Al-Qaeda’s recruitment of child soldiers is immoral and abusive; consequently, it is immoral and abusive to prosecute as a war criminal a child recruited by al-Qaeda, and punish him accordingly. We can’t have it both ways.

Lately, it has dawned on Canadians that the United States may well have lied about its evidence against Mr. Khadr. Far from having proof that only he could have thrown the grenade that killed their soldier, the U.S. appears to have hidden the truth: that the teenage Canadian was in the company of an adult al-Qaeda fighter and was himself unarmed, on his knees and facing away from battle when a U.S. soldier shot him twice — in the back.

But the falsehoods are only part of the reasons why Canadians let the 15-year-old disappear six years ago into the legal black hole of Guantanamo Bay, Cuba, in which he had no access to a lawyer for the first 27 months and no way to contest his detention. Canadians accepted that Mr. Khadr be held fully responsible for his actions. As if he were an adult.

The irony has never really penetrated Canadians’ consciousness. Canada, the country of the liberal Youth Criminal Justice Act, is the only Western nation to give the United States carte blanche with one of its nationals at Guantanamo. Britain, Australia, Sweden and Germany fought to repatriate their nationals — adults, all of them. And Canada let a juvenile languish.

The reply from our government is but a single, vapid refrain: “Let the process work.” But this is a process that, even apart from its other flaws, aims at punishing Omar Khadr for the accident of his birth in an al-Qaeda family.

A VICTIM OF HIS OWN HOME

When a young person raised in a terrorist family becomes a terrorist at 15, does he join voluntarily? Can he give free and informed consent? To say yes is to let al-Qaeda and Toronto’s Khadr family off the hook for grooming children for terrorism. It puts the onus on the children to resist.

Most Canadian children grow up in circles within circles of benign, positive influences — family, school, neighbourhood, the larger culture. Omar’s circles of influence were pro-terror. His late father, Ahmed Said Khadr, was a senior financier with al-Qaeda who prodded Abdurahman, Omar’s elder brother, to become a suicide bomber. Even his mother and sister boasted on national television of the glories of terrorism.

From age 11, Omar was inculcated in terror, according to the U.S. charge sheets. “From 1996 to 2001, the Khadr family travelled throughout Afghanistan and Pakistan, including yearly trips to Usama bin Laden’s compound in Jalalabad for the Eid celebration at the end of Ramadan. While travelling with his father, Omar Khadr saw or personally met senior al-Qaeda leaders, including Usama bin Laden, Doctor Ayman Al-Zawahiri, Muhammad Atef (aka Abu Hafs al Masri), and Saif al Adel. Khadr also visited various al Qaeda training camps and guest houses.”

Only an extraordinary 15-year-old could have withstood that grooming process. The Khadr son who did resist, Abdurahman, did not do so until he was in his 20s. A younger brother, Abdul Karim, was paralyzed in battle in Pakistan in 2004 at 14. (His father was killed in the same battle.) The oldest brother, Abdullah, faces extradition from Toronto to the United States on terrorism charges from Afghanistan.

Yet many Canadians insist he acted of his free will. “Real child soldiers are forcibly taken from their parents (who are often killed),” one Globe reader wrote in an unpublished letter to the editor. “These children are drugged, brainwashed, and abused so they become killers. Khadr became a soldier/terrorist because his family encouraged it. He was a willing participant. Where was the coercion?”

This is a narrow view of coercion. Could there be a worse form of coercion than that in a father’s wish that his son become a suicide bomber? “Blow yourself up or lose your father’s esteem.” Omar’s family culture promoted dying for the cause. That was what it meant to be a good boy in that family.

CHILD SOLDIERS ELSEWHERE

The world is rife with child soldiers. Peter Singer of the Brookings Institution in Washington, D.C., estimates that as many as 300,000 child soldiers are in combat around the world. Yet none of today’s international war-crimes tribunals prosecute child soldiers or terrorists.

No one under 18 has been charged before the tribunals for Rwanda or the former Yugoslavia. No one has been charged in East Timor, in Cambodia, in Bosnia and Herzegovina. “To date, there is no precedent in history for the prosecution of a child soldier before an international criminal tribunal, and similarly there is no precedent in the Western world for prosecution of a child soldier before any state tribunal,” says Sarah Paoletti, a professor at the University of Pennsylvania School of Law, in a friend-of-the-court brief to the military commission that is to try Mr. Khadr. (Among those whose names are on that brief are former Canadian justice ministers Irwin Cotler and Allan Rock.) The U.S. says there are in fact precedents, but its examples predate the Nuremberg Tribunals. For instance, a British Military Court in northwestern Germany convicted and jailed a 15-year-old Hitler Youth member for his role in killing a British serviceman.

More recently, at the Special Court for Sierra Leone in 2004, the U.S. prosecutor, David Crane, was given the option of putting on trial, in a court without punishment, those age 15 to 17 who committed war crimes. Memorably, Mr. Crane rejected that idea. “The children of Sierra Leone have suffered enough both as victims and perpetrators. I want to prosecute the people who forced thousands of children to commit unspeakable crimes.”

If international practice is clear, the law as written is less so.

The relevant text is the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Both Canada and the U.S. are among the 150 signatories. “The Protocol prohibits the United States from using child soldiers, not from prosecuting them,” says the U.S. brief to the military commission.

It’s right. The protocol is silent on its face. Emboldened by that silence, the U.S. stretches the point: “If anything, the Protocol obligates the United States to prosecute Khadr” because not punishing Mr. Khadr would “further incentivize” al-Qaeda in recruiting young people.

If the U.S. is right, where is the outcry that all the world’s child soldiers are going unpunished at all the world’s tribunals except this one?

Omar Khadr was a war crime waiting to happen. Anyone in al-Qaeda or the Taliban is an unlawful enemy combatant under U.S. law. Anything such a combatant does to fight, even in battle, is a war crime.

“In a normal war,” explained John Bellinger, a legal adviser to the U.S. state department, “where both sides have a right to engage in combat with one another, if a soldier kills a soldier on the other side, it’s not murder unless it is done somehow contrary to the laws of war perfidiously, or killing someone when they have already surrendered.

“In this case, though, the members of al-Qaeda and the Taliban, while they may have thought they were defending themselves, they had no legal right under the laws of war to be engaging in combat.” There’s a legitimate expectation that young people know and abide by the criminal law of their countries; the minimum age of criminal responsibility is usually 12 (as it is in Canada). But how could a 15-year-old of Mr. Khadr’s experience and background have been aware of the laws of war, especially laws that hadn’t been invented yet?

And speaking of inventions: “According to the reports of the action we have available, the last surviving enemy in that compound … as his last act at the firefight rose up with a pistol and hand grenade, and engaged the coalition forces, threw the grenade,” Col. Roger King, a U.S. spokesman based in Afghanistan, told the Associated Press in September, 2002. We now know that the U.S. had an eyewitness report that painted a very different picture.

A CASE FOR CANADIAN PROCESSES

And what has Canada done to help Mr. Khadr? It sent intelligence officers to interrogate him without counsel, and passed summaries of the interrogations to the Americans. Some help. (The Supreme Court of Canada is hearing Mr. Khadr’s request next week for access to Canada’s files from those visits.)

“The recruitment and use of child soldiers is one of the most flagrant violations of international norms,” says Mr. Singer. Why? Because children are not to be made a mere instrument of the state or terror group. Because children are manipulable. Because children cannot assess risk as adults can. To prosecute children as if they were fully responsible for war crimes is to legitimize their recruitment.

As other Western countries have repatriated adult suspected terrorists — several, in Britain’s case — it seems strange that Canada would not bring a lone 21-year-old home to face fair processes that would take into account his age and background, and his long incarceration at Guantanamo. Omar Khadr, child soldier, has been dehumanized enough. Bring him home.

Cheney may have leaked secret video in Gitmo case

Lawyers for Guantanamo Bay detainee Omar Khadr have alleged that Vice President Dick Cheney’s office leaked a secret video of Khadr in Afghanistan to CBS’ 60 Minutes after a judge denied a prosecution request to play the video in court. Former Gitmo chief prosecutor Col. Morris Davis told Lt. Cmdr. William Kuebler — Khadr’s lawyer — that Cheney’s office may have been involved. Kuebler said that if proven, the leak is a “clear violation of the protective orders that are in place” in the case.

‘High-value detainee’ gets lawyer

Alleged arch-terrorist Abu Zubaydah, whom the CIA waterboarded in secret overseas interrogations, has agreed to let a civilian American attorney handle his case, the lawyer said Tuesday.

”I represent him,” Chicago law professor Joseph Margulies said on his arrival in Fort Lauderdale from a weekend visit with the captive at the U.S. Navy base at Guantánamo.

A second U.S. attorney, Brent Mickum, also took part in the session.

The session is the first known meeting between a defense attorney and the captive — who once ran a paramilitary training camp in Afghanistan — since his March 28, 2002, capture in a firefight at an alleged al Qaeda safe house in Faisalabad, Pakistan.

From there, he disappeared into years of secret detention, out of reach of the International Committee of the Red Cross, until President Bush announced his transfer to the U.S. Navy base in September 2006.

Since then, CIA director Michael V. Hayden, an Air Force general, has confirmed that agents used the simulated form of drowning that human rights advocates call ”water torture” to force him to spill secrets to his captors.

Interrogations were videotaped but the tapes have since been destroyed by orders of a senior CIA official to a station chief in Bangkok, Thailand — now the subject of a Justice Department investigation.

Abu Zubaydah is the second ”high-value detainee” to meet with defense lawyers.

Extraordinarily circumspect, Margulies said that ground rules for the meeting permitted him to disclose only that ”a meeting took place,” the captive is held ”in a place called Camp 7” and he had ”no objections” to the Pentagon’s access provided during the Thursday to Monday visit to the base.

Margulies said the client-lawyer meetings covered two days and about 12 hours.

Margulies and Mickum are seeking to challenge Abu Zubaydah’s designation as ”enemy combatant” through a federal appeals court panel under a limited appeals system set up by Congress in 2005 and 2006.

A key stepping stone was securing authority to represent him, which Margulies indicated in his remarks that he got in the weekend trip.

Margulies flatly refused to elaborate any further — to described under what conditions they met and whether he would be able to disclose more after military censors clear notes of the meeting.

He did confirm he would seek to meet with his client in the future but would not directly answer a question on whether he found the circumstances of access “intimidating.”

”I would say that I am keenly aware of the limits placed on me by the protective order,” he replied.

His client’s full name is Zayn Abidin Abu Zubaydah and, according to a White House fact sheet disclosed at the time of his transfer to Guantánamo, he was recruited to terrorism by Osama bin Laden — and had ties to Abu Musab al Zarqawi, the al Qaeda of Iraq founder since killed by U.S. forces.

It said he was “not believed to be directly linked to the attacks on 11 September 2001.”

In transcripts of a March 2007 hearing before a military panel at Guantánamo, Abu Zubaydah described himself as not an acolyte of bin Laden but a rival — whose ideological version of Islamic holy war forbade 9/11-style attacks on civilians.

Margulies, who is a professor at Northwestern Law School, is a seasoned Guantánamo defense attorney both in the civilian and military arenas. In January 2005, he helped secure the repatriation to Australia of then Pentagon detainee Mamduh Habib — and accompanied Habib on his flight home.

He also served as an attorney at an earlier Pentagon effort to hold trials by military commissions that were upset by a Supreme Court ruling that the format was unconstitutional.

In 2006 he published a book called Guantánamo and the Abuse of Presidential Power.

Mickum, who works for a Washington, D.C., law firm, has likewise represented detainees since freed from Guantánamo, including former British resident Bishar Rawi, who was taken captive in the West African country of Gambia, sent to the remote base in Cuba and ultimately released a year ago after disclosure that he had worked as an informant for the British intelligence agency MI5.

Abu Zubaydah is the second former CIA held ”high-value detainee” among 15 at Camp 7 in Guantánamo to see a defense lawyer.

Earlier, two attorneys from the Center for Constitutional Rights met with Baltimore area educated captive Majid Khan, and have disclosed through public court filings cleared by intelligence censors that Khan and Abu Zubaydah share a recreation period together in their detention.