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Pentagon approves 9/11 death penalty trial

By Carol Rosenberg, McClatchy Newspapers –

The Pentagon on Wednesday cleared the way for a death penalty trial against five Guantanamo Bay prisoners charged with engineering the Sept. 11, 2001, attacks.

Retired Vice Adm. Bruce MacDonald, the senior Pentagon official overseeing military commissions, signed off on the capital trial against Khalid Sheik Mohammed, 46, and four alleged co-conspirators, according to a Defense Department announcement.

But the military had not yet presented the men with the charges at the remote prison at the U.S. base in southeast Cuba. That meant the 30-day clock had not yet started requiring their appearance before a military commissions judge to hear a formal reading of the charges at Guantanamo’s war court compound, called Camp Justice.

The soonest they would be presented the charges would be Thursday, said David Oten, a Pentagon spokesman.

The chief war court judge, Army Col. James L. Pohl, would then assign a military judge to the case, Oten added.

U.S. Attorney General Eric Holder had wanted them prosecuted in a civilian court in New York City. Opposition from Congress caused Holder to reverse course a year ago and return the case to the military at Guantanamo. Pentagon prosecutors have been preparing their case since then.

The charges accuse the five men of organizing the attacks, including funding and training the 19 men who hijacked the four commercial airliners on Sept. 11, 2001, and then crashed them into the World Trade Center, the Pentagon and a field in Shanksville, Pa., killing 2,976 people. The two lead trial attorneys are retired Army Col. Robert Swann and federal prosecutor Edward Ryan — the same two men who were designated to prosecute the case by the Bush administration.

Anthony Romero, executive director of the American Civil Liberties Union, said the Obama administration “is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice.”

“Whatever verdict comes out of the Guantanamo military commissions will be tainted by an unfair process and the politics that wrongly pulled these cases from federal courts, which have safely and successfully handled hundreds of terrorism trials.”

Romero, whose group has funded some of the 9/11 case defense lawyers, said the war court was “set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial.”

The chief prosecutor, Army Brig. Gen. Mark Martins, has said that by law no evidence derived through torture can be used at a Guantanamo trial.

Martins has assigned himself to the 11-lawyer prosecution team, which includes Justice Department lawyers Joanna Baltes, Jeffrey Groharing and Clayton Trivett as deputy trial counsels to Ryan and Swann. Trivett, a lieutenant commander in the Navy Reserves, and Groharing, a lieutenant colonel in the Marines, had also worked on the 9/11 case during the Bush years.

The other four men facing the death penalty charges in the joint trial are Walid bin Attash, 33, a Yemeni; Ramzi Bin al-Shibh, 39, a Yemeni; Mustafa al-Hawsawi, 43, a Saudi; and Ali Abdul Aziz Ali, 34, a Pakistani who is Mohammed’s nephew and also known as Ammar al Baluchi.

The Pentagon’s war court witness advocate, Karen Loftus, sent a blast email to Sept. 11 families on Wednesday advising them of the case development. Survivors and victims of the 9/11 attacks are invited to watch the proceedings at Guantanamo, selected through a lottery.

Loftus told the families that they could sign up for a special Pentagon online portal for future information.

She also described the military jury that will hear the Sept. 11 mass murder trial as “a panel of at least 12 members, whose function is analogous to jurors in a federal or state court. The case was also referred to as a joint trial, meaning that all five of the accused will be tried together, unless the military judge later determines that any or all of the accused should be tried separately.”

A Pentagon-paid defense lawyer for Ali, accused of wiring money to the 9/11 hijackers, has argued his client should not face a capital trial because he isn’t alleged to have killed anyone — or plotted to kill.

“Mr. Ali would not be eligible for the death penalty if this case were tried in federal court,” said attorney James Connell. “This attempt to expand the reach of the death penalty to people who neither killed nor planned to kill is another example of the second-class justice of the military commissions.”

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