By Carol Rosenberg, McClatchy Newspapers –
GUANTANAMO BAY NAVY BASE, Cuba — When Khalid Sheik Mohammed and his four alleged 9/11 co-conspirators are brought before the war court Saturday to face arraignment, they’ll have three ways to answer to the charges: Plead innocent. Plead guilty. Or no plea at all.
In the short history of the military commissions, since President George W. Bush had them created, most have not pleaded at all.
That’s because, just like at a military court-martial, entering a plea at a military commission cuts short an accused war criminal’s rights at the Guantanamo war court — the right, for example, to argue that some charges are not lawful, and to see at least some of the evidence the prosecution has built.
And of the few men who did plead guilty, none was facing a death penalty trial. Each came to court to enter the plea after protracted negotiations that traded the convict’s cooperation with the U.S. government for short sentences, or other considerations.
In the case of the Sept. 11 accused, each is facing a death penalty for allegedly planning, funding or training the hijackers for the terror attacks that killed 2,976 people in New York, Washington and Pennsylvania — al-Qaida’s strike at the heart of America.
Each of the men got to Guantanamo after five years of secret and at times harsh CIA interrogations, some using the techniques that President Barack Obama outlawed as torture.
And legal sources say there has been no effort to negotiate behind the scenes for any way to enter a plea.
“Our clients are not interested in negotiating a plea,” said veteran criminal defense attorney Jim Harrington Friday. “And the government, as far as I know, is not interested in negotiating a plea, either.”
Saturday’s hearing, held in a top-security court compound, restarts a process that confounded the court during the Bush years when Mohammed announced that he and the other four yearned for martyrdom and were ready to confess their crimes. It was something the Bush-era formula for military commissions hadn’t anticipated. But before the judge at the time could sort it out, Obama stopped the court and worked with Congress to reform it.
Now the five men go back to court with greater protections. Evidence gleaned through coercion is nearly always off-limits, “with a small carve-out for battlefield exceptions,’’ says the chief war crimes prosecutor, Army Brig. Gen. Mark Martins. Voluntariness is the standard.
Concurrently, media and legal groups are maneuvering to hear directly from the accused what the CIA did to them. Mohammed has called it “the torture.”
The rules do allow for a guilty plea. But nothing like the speedy path to 9/11 justice the victims seek.
“I’d like them all to be killed,” said New Yorker Cliff Russell, 58, whose firefighter brother Stephen, then 40, died rescuing people at the World Trade Center. “I think I have all the evidence I need.”
Were the five men to enter pleas, it would be up to the new chief Guantanamo judge, Army Col. James L. Pohl, to question these men on the elements of each crime, to take them step by step through the government’s case and admit their guilt. And acknowledge it was wrongful.
Not recite manifestos. Not challenge the authority of the court to judge them, as Mohammed did at his first arraignment.
“I will not accept anybody, even if he would be Muslim,” he told the judge June 5, 2008. “I believe only in the law of God. In Allah, my shield is Allah most high. God, he is real judge.”
Were the judge to confirm a guilty plea, he does not decide the penalty of incarceration or death.
Rather, that’s the role of the commission. At least 12 U.S. military officers are chosen, first to hear the prosecution present its case. Then the Pentagon-paid defense lawyers could present mitigating circumstances for the officers to consider while deliberating the sentence.
If the opposite were to occur, and the men plead not guilty, the judge would then be required to assemble the commission and hold a trial. By pleading not guilty at arraignment, the accused forfeit the right to challenge many of the contours of the trial — to challenge the evidence in advance, to press for more discovery, to argue that the government piled on charges. Under the rules, the judge has 120 days to bring in a jury and start the trial.
