A war court prosecutor argued Monday that an incendiary, boastful 2009 statement attributed to the five alleged 9/11 plotters is evidence that amounts to a confession suitable for use at their death-penalty trial.
Lawyers for one of the accused, Mustafa al Hawsawi, call the document prejudicial. They want the trial judge to seal the so-called Islamic Response, order prosecutors not to distribute it, and to exclude it as evidence from a pretrial hearing on whether Hawsawi is an Alien Unprivileged Enemy Belligerent — the category of captive who can be tried at the war court.
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To which prosecutor Ed Ryan replied that a Bush-era trial judge, Army Col. Stephen Henley, accepted the document in March 2009 — and it is now available on the Pentagon’s war court website, the Congressional Record and on news sites, including the Miami Herald.
The document emerged from an era when the five men were allowed to consult among themselves every other week inside the maximum-security war court — in late 2008 and early 2009, straddling a time when President Barack Obama put a stop to the war court to reform it. The men accused of directing, financing and training the Sept. 11 hijackers had arrived at the base in September 2006 after three to four years of secret CIA detention during which, their lawyers say, they were tortured and conditioned to say what their captives wanted to hear, right or wrong.
It declares the death-penalty charges against them “badges of honor, which we carry with pride. Many thanks to God, for his kind gesture, and choosing us to perform the act of Jihad for his cause and to defend Islam and Muslims.”
Its full name is “The Islamic Response to the Government’s Nine Accusations,” and the English version has the names of all five accused 9/11 plotters at the bottom.
The English translation from Arabic, prepared at Henley’s request, also calls the conspiracy charges on the earlier, abandoned prosecution “laughable.”
“Were you expecting us to inform you about our secret attack plans? Your intelligence apparatus, with all its abilities, human and logistical, had failed to discover our military attack plans before the blessed 11 September operation. They were unable to foil our attack. We ask, why then should you blame us, holding us accountable and putting us on trial? Blame yourselves and your failed intelligence apparatus and hold them accountable, not us.”
At the time, Henley permitted accused mastermind Khalid Sheik Mohammed and two other alleged plotters to represent themselves at the aborted Bush-era trial. The judge had not yet decided whether co-defendants Hawsawi and Ramzi bin al Shibh were competent to serve as their own lawyers.
“The five of them are acting together; doesn’t matter if they’re represented or not,” Ryan argued. “They’re begging, essentially to confess, to plead.”
He added that co-defendant Ammar al Baluchi, Mohammed’s nephew, sent the filing to the court clerk, prosecution and tried to send it to his mother, Mohammed’s sister.
Ryan also defended the practice of distributing it to victims of the Sept. 11 attacks who come to watch war court hearings as prosecution guests.
In court Monday were the siblings, widows, son, sister-in-law and parents of five people who were killed in the World Trade Center — Richard Aronow, Prem Nath Jerath, Christine and Michael Egan and Jonathan “JR” Ryan. Charles Kaczorowski, who was a site supervisor at Ground Zero recovery clean-up operations, was also watching as a guest of the prosecution.
In a June 15 court filing, Mohammed’s lawyer, David Nevin, pointedly distanced himself from the current Hawsawi effort to suppress the Islamic Response. That would come later, he said, after his team gets more government evidence.
He called Hawsawi’s lawyers’ efforts premature and flawed because they fail to argue that certain damaging statements by Mohammed and the others “were and continue to be the product of torture imposed upon them in CIA ‘black sites’ in the five years between his arrest and the time when an attorney was finally provided to him.”
Ryan called the document a voluntary confession. “There’s not a cop in sight. This a statement that is given by the accused that came out of their own thinking, their own actions, their own decisions.”