The head of the U.S. military tribunal system rejected a government request that he drop a conspiracy charge in the case of Khalid Sheikh Mohammed and four other accused plotters of the Sept. 11 attacks.
The chief prosecutor in the biggest U.S. terrorism case, Army Brigadier General Mark Martins, had recommended dropping the conspiracy charge because of “substantial uncertainty” about its legal validity, the Defense Department said today in a statement.
Retired Vice Admiral Bruce McDonald, who has the title of convening authority for military tribunals, decided that withdrawing the conspiracy charge would be premature because the issue of its validity “is still pending appellate review,” according to the statement.
Uncertainty was created in October, when the U.S. Court of Appeals in Washington threw out the 2008 conviction of Osama bin Laden’s former driver after finding he was wrongly tried under a law that didn’t exist at the time of the alleged crime.
Salim Hamdan, who was captured in Afghanistan in November 2001 and sent to the U.S. military facility at Guantanamo Bay, Cuba, two months later, was the first terrorism suspect found guilty at a U.S. military war-crimes trial since the Sept. 11, 2001, attacks.
The appeals court said the Military Commission Act of 2006 didn’t cover retroactive prosecution of acts that weren’t prohibited as war crimes.
Based on that ruling, Martins questioned whether the conspiracy charge in the Sept. 11 case would stand up in court, the Defense Department said.
Mohammed and his co-defendants also face charges of attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking aircraft, intentionally causing serious bodily injury, and terrorism, according to the statement.
James Connell, an attorney for Ali Abdul Aziz Ali, a nephew of Mohammed who allegedly helped finance the Sept. 11 hijackers, said the decision shows the military tribunal system is “fundamentally unfair.”
“The convening authority’s decision to require a charge to go forward when the chief prosecutor says that it is not legally viable demonstrates that the convening authority is in no way a neutral body,” Connell said in an e-mailed statement.
Lieutenant Colonel Todd Breasseale, a Pentagon spokesman who handles tribunal matters, said in a statement that the different positions of the convening authority and the chief prosecutor show “an example of the legal rigor and encouraged debate within the system itself.”
While a trial is probably years away, hearings are scheduled to resume on Jan. 28 in Guantanamo Bay. Among the issues before the court is whether the government must preserve evidence from so-called black sites where the defendants were allegedly tortured.
The case is U.S. v. Mohammed, Military Commission Trial Judiciary (Guantanamo Bay, Cuba).