But Proposal Is Pulled Over Death Penalty Issue
By Peter Finn
Washington Post Staff Writer
Tuesday, December 9, 2008; A01
GUANTANAMO BAY, Cuba, Dec. 8 -- Five of the men accused of planning the Sept. 11, 2001, attacks said Monday that they wanted to plead guilty to murder and war crimes but withdrew the offer when a military judge raised questions about whether it would prevent them from fulfilling their desire to receive the death penalty.
"Are you saying if we plead guilty we will not be able to be sentenced to death?" Khalid Sheik Mohammed, the self-proclaimed operational mastermind of the attacks, asked at a pretrial hearing here.
The seesaw proceedings Monday raised and then postponed the prospect of a conviction in a case that has become the centerpiece of the system of military justice created by the Bush administration. A conviction would have capped a seven-year quest for justice after the 2001 attacks, but the delay in entering pleas will probably extend the process beyond the end of the Bush presidency.
The willingness of the defendants to "announce our confessions and plea in full," according to a document they sent to the judge in the case, Army Col. Stephen Henley, potentially bestows some hard decisions on the incoming administration. President-elect Barack Obama has vowed to close the Guantanamo Bay detention facility, but he has not indicated whether he will retain the military commissions that may be close to securing the death penalty for suspects in the worst terrorist attacks in U.S. history.
If the judge ultimately accepts guilty pleas, the ability of the Obama administration to transfer the case to federal court -- a desire expressed by some Obama advisers -- might be constrained, said Anthony D. Romero, executive director of the American Civil Liberties Union. That could mean the new administration may have to oversee an execution resulting from a process that many Obama supporters and legal advisers regard as deeply flawed.
A guilty plea, however, could shield the Obama administration from what some legal experts view as potentially hazardous proceedings in federal court, where evidence obtained by torture or coercive interrogation would not be admitted. CIA Director Michael V. Hayden has acknowledged that Mohammed was subjected to waterboarding, an interrogation technique in which a prisoner is restrained as water is poured over his mouth, causing a drowning sensation.
Although legal analysts say Mohammed and his co-conspirators would probably be convicted of terrorist offenses, the ability to obtain a capital conviction may have been undermined by the use of practices that have been criticized as torture.
"It is absurd to accept a guilty plea from people who were tortured and waterboarded," said Romero, who is observing the proceedings. He said in an interview that the Obama administration should clearly signal that it intends to abolish the military commissions as well as the detention system, so the judge and other Pentagon officials will not move forward with the proceeding. The Obama team declined to comment Monday.
Offering to plead guilty along with Mohammed were Ramzi Binalshibh, Mustafa Ahmed al-Hawsawi, Tawfiq bin Attash and Ammar al-Baluchi, also known as Ali Abdul Aziz Ali. Baluchi is a nephew of Mohammed. "Our success is the greatest praise of the Lord," Mohammed and the four others wrote of the attacks in a document they sent to Henley last month.
Binalshibh and Hawsawi have not yet been judged competent to represent themselves, and Mohammed and the two others said they would defer a decision on a guilty plea until all five could act together. But the motivation behind withdrawing the plea offer appears to be the prospect of execution, lawyers here said. Mohammed has expressed a desire to die as a martyr, yet Henley questioned whether a death sentence is permissible without a verdict by a military jury.
The Pentagon, in announcing formal charges against the five in May, said each was accused of "conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism."
"We all five have reached an agreement to request from the commission an immediate hearing session in order to announce our confessions," the defendants said in their letter, parts of which Henley read aloud Monday. They said they were not under "any kind of pressure, threat, intimidations or promise from any party."
The five wrote the note Nov. 4 after meeting here that day to plot legal strategy, the court heard. The men, who are being held at a secret facility on the military base here, were allowed to meet together for at least 27 hours in recent weeks, a prosecutor said.
Outside the courtroom, the defendants' civilian attorneys, who were organized by the ACLU and the National Association of Criminal Defense Lawyers, said they had considered walking out on the proceeding if the judge accepted guilty pleas. "This show trial is nothing more than an effort to blackmail" Obama and limit his options, said Tom Durkin, a civilian attorney for Binalshibh.
Prosecutors rejected any suggestion that there was a politically motivated rush to justice.
"There are some decisions that are unique to the accused; the first of them is how he pleads," said Army Col. Lawrence Morris, chief military prosecutor. "The government has nothing to do with that decision."
Attending the Guantanamo Bay proceedings for the first time were relatives of people killed in the Sept. 11 attacks. The Defense Department chose the relatives of five victims by lottery and arranged for them to travel to the U.S. naval base on the eastern tip of Cuba, a Pentagon spokesman said. "It's clear to me they know what they did and they are willing and want to plead guilty," said Hamilton Peterson of Bethesda, who lost his father and stepmother on United Airlines Flight 93 in Pennsylvania. "I think [Obama] will come to the realization that this is a very appropriate and fair venue."
The families were divided on the death penalty. Peterson and others said it was appropriate. But Alice Hoagland, who lost her son Mark Bingham on United Flight 93, said the defendants "do not deserve to be dealt with as martyrs."
Henley asked three of the defendants representing themselves -- Mohammed, Attash and Baluchi -- whether they were willing to enter guilty pleas. All said Monday morning that they were ready to do so.
Henley said he would not be able to accept pleas from Binalshibh and Hawsawi because the court has yet to hold hearings on whether they are mentally competent to represent themselves. An attorney for Binalshibh, Navy Cmdr. Suzanne Lachelier, objected to filing the Nov. 4 document on behalf of her client, saying he had "been permitted to go to this meeting" and others "without notice to me."
When the court resumed after a late-morning break, Mohammed, joined by Attash and Baluchi, changed tack and said he would not enter a plea until a decision was made on Binalshibh and Hawsawi. Lawyers had told them during the break that a plea could mean that they might not receive the death sentence and that it could cut off their two co-conspirators, according to a source familiar with the conversation.
"I want to postpone pleas until decision is made about the other brothers," Mohammed said.
The military court was told in an earlier hearing that Binalshibh, an alleged liaison between the hijackers and al-Qaeda's leadership, is being administered psychotropic drugs. And an attorney for Hawsawi, a Saudi and alleged financier of the attacks, said Monday that he had requested a mental competency hearing for his client.
Anticipating future pleas, Henley said Monday that he wanted a briefing from the prosecution and a defense response by Jan. 4 on whether he could accept guilty pleas in a death penalty case under the language of the military commissions statutes, which suggest that a death penalty could arise only from a decision by a military jury.
"The fact that the judge and the prosecution and the defense clearly don't know the consequences of a guilty plea shows the sorry state of these commissions," said Diane Marie Amann, a professor at the University of California at Davis, who is observing the proceedings here for the National Institute of Military Justice.
The prospect of a guilty plea and a possible death sentence would represent a major victory for the Bush administration, which had given up on bringing Mohammed and the others to trial before leaving office Jan. 20. In the seven years since the Guantanamo Bay detention camp opened, only three people have been convicted, one as a result of a plea agreement. Two of those found guilty have been returned home. None of the "high-value" detainees transferred from CIA custody to Guantanamo in 2006 has gone to trial.
Human rights groups said the judge should hold a full hearing to determine that any pleas are free from coercion. "In light of the men's severe mistreatment, the judge should require a full and thorough factual inquiry to determine whether or not these pleas are voluntary," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. Daskal also said Mohammed's possible influence over the others should be explored.
Baluchi, a Pakistani accused of having been a key lieutenant of Mohammed, told a military court this year that he was an ordinary businessman who had no knowledge of the Sept. 11 plot. And at a hearing in June, Army Maj. Jon Jackson, the military lawyer for Hawsawi, said his client was subjected to "intimidation by the co-accused" during courtroom conversations.
But the defendants insisted Monday that there was no coercion. "All of these decisions are undertaken by us without any pressure or influence by Khalid Sheik," Baluchi told the judge Monday.
Mohammed, born in Kuwait to Pakistani parents, was captured in Pakistan in March 2003 and held in secret CIA prisons for three years before President Bush ordered the transfer of 14 high-value detainees to Guantanamo Bay in September 2006. Mohammed told a military hearing in March that he planned the attacks. "I was responsible for the 9/11 operation, from A to Z," Mohammed said.
On Monday, Mohammed injected humor into his statements. Citing delays in getting documents from the defendants to the judge, he asked whether the commissions are "using carrier pigeons."
In a final outburst as court ended Monday evening, Binalshibh, speaking in Arabic, said that because it is a Muslim feast day, he wanted "to send my greetings to Osama bin Laden and reaffirm my allegiance. I hope the jihad will continue and strike the heart of America with all kinds of weapons of mass destruction."
Staff writer William Branigin and staff researcher Julie Tate, both in Washington, contributed to this report.
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