For two days this week, defense lawyers for the men accused of plotting the Sept. 11 attacks challenged the integrity of the war court, arguing to dismiss the case as at odds with the international law of war.
Arguments ranged from, if the United States was in a true war with al-Qaida on 9/11, then it would have been legal to commandeer aircraft — to Congress didn’t have the authority to invent war crimes charges called terrorism, hijacking and conspiracy.
“If the government wants to try Mr. al Hawsawi or anyone else for the 9/11 attacks, they are in the wrong court, wrong kind of court and they are using the wrong body of law. This is true under the U.S. Constitution, combined with the international law of war,” said Army Maj. Joseph Wilkinson, defense lawyer for one of the five alleged plotters, Mustafa al Hawsawi, accused of helping with the hijackers’ finances.
Those death-penalty charges are legitimate in federal court, where they existed as crimes before the terror attacks of Sept. 11, 2001, defense lawyers argued. But not in the military tribunal Congress created a decade ago after President George W. Bush had the CIA bring the accused 9/11 plotters here from years of clandestine detention and interrogation. Moreover, they said, President Barack Obama and Congress didn’t fix the war court restricted to non-citizens by expanding the rights of those accused.
To underscore the point, Wilkinson invoked the case of confessed “20th hijacker” Zacarias Moussaoui. He was tried in a U.S. District Court for conspiring to commit air piracy. The crime existed before Sept. 11, and so did the federal court system. “The difference being if you are charged with a civilian crime in a civilian court, you get your full set of constitutional rights, which is not the case in a law of war commission.”
Congress knew exactly what it was doing, countered case prosecutor Clay Trivett, when it created the Military Commissions Act now being used to try the men accused of conspiring with the 19 hijackers of four passenger planes who “turned them into guided missiles and attacked the World Trade Center, the Pentagon, and an additional plane was crashed, killing all on board in Shanksville, Pennsylvania.”
The chief war crimes prosecutor, who has defended the war court’s integrity at the appellate level, likewise expressed confidence in the sustainability of the court whose initial version was ruled illegitimate by the U.S. Supreme Court.
“We believe there’s sufficient pedigree in the U.S. common law of war,” Army Brig. Gen. Mark Martins. “This is a completed conspiracy. This is not subject to the infirmities that are imagined here.”
At very least, the legal debate annoyed relatives of some of the 2,976 victims of the Sept. 11 attacks who were watching the hearing argument at the national security court. Seven attended, all chosen by a Pentagon lottery to peer through triple-pane glass separating them from the alleged mastermind, Khalid Sheik Mohammed, clad as usual in a jungle camouflage hunting jacket, and the others.
“I do believe that the military commission is beating a dead horse. Burying it. Resurrecting it. Beating it again and burying it,” said Abraham Scott, whose wife Janice was a civilian Army employee and killed in the Pentagon that dark day.
“I just hope and pray that the military judge will say, ‘That’s it,’ ” Scott told four reporters on hand for the hearing. “Enough is enough, let’s proceed from the hearing into the actual trial itself and bring this important issue to a close and either put them to death or life sentence or whatever. But I’m ready for it to end.”
At one point Wilkinson argued there are real wars and there are challenges that American presidents have called wars. But they haven’t created new courts to try them.
“You lived through a time when President Johnson declared war on crime and you have lived through a war on drugs,” he told the judge, Army Col. James. L. Pohl. “Of course, the government has not so far declared either of those to be an armed conflict.”
Pohl has yet to rule. But the legal motions go to the very heart of the legitimacy of the court. Defense lawyers argued that U.S. appeals courts have already decided, in discrediting the once-used war court charge of providing material support for terrorism as a post- 9/11 invention, the same applies to three key charges in the Sept. 11 case.
“They have charged real war crimes alongside nonexistent ones and challenged us to pick out the difference. And here they are: Conspiracy, terrorism and hijacking,” civilian defense attorney Alka Pradhan told Pohl.
The underlying issue is the principle of ex-post facto, meaning you can’t create a category of crime after the fact. Terrorism, air piracy and conspiracy were crimes in U.S. federal courts before the Sept. 11 attacks but they weren’t part of what is known as the law of war. They’re not in the Geneva Conventions and international war crimes tribunals have never charged them, defense lawyers say.
“If we are here talking about war crimes in a war court for acts arising out of a purported state of hostilities,” Pradhan argued, “the charges have to be limited to existing war crimes on Sept. 11, 2001, with the attendant elements to it accounting for the different criminal standards during wartime.”
Pradhan represents Ammar al Baluchi, the nephew and co-defendant of the alleged mastermind, Khalid Sheik Mohammed. Baluchi’s lawyers argue the war began on Oct. 7, 2001, when U.S. troops began attacking Afghanistan. Hawsawi’s lawyers don’t give a start date but said the U.S. was not at war on 9/11. That came later. But the so-called 9/11 Five are charged with crimes leading up to the Sept. 11 attacks.
The five alleged terrorists were captured in 2002 and 2003, and disappeared into the secret CIA prison network until their transfer to Guantánamo for trial in the special court the defense lawyers decried. Obama’s attorney general, Eric Holder, proposed to put them on trial in federal court in New York City, something Congress would come to forbid in favor of the court they created here for the alleged Sept. 11 conspirators.
Wilkinson likened it to “the pre-revolutionary period when King George’s government was unhappy that colonial jurors were letting smugglers go because smugglers were popular in New England.” So the king consigned the cases to “the admiralty courts,” which “had no trial by jury.”
Chief prosecutor Martins, however, argued there is something called the “U.S. common law of war,” dating back to the Civil War.
Martins cited the 1864 case of civilian sympathizers of the U.S. Confederacy who used “firearms and hatchets to overcome the crew” of a Lake Erie passenger vessel, the American steamer Philo Parsons. The civilians were unprivileged belligerents, just like the five Sept. 11 case defendants, Martins said. And their crime was the equivalent of a modern-day hijacking. Or as the general put it, an “early evoking of overt acts on the current charge sheet.”