The Pentagon’s war crimes prosecutor has decided to no longer seek a conspiracy conviction at the Sept. 11 death penalty trial, a move designed to shore up the case after a federal court undercut the authority of the Guantánamo war court three months ago, the Defense Department said Wednesday.
The announcement means that reputed 9/11 mastermind Khalid Sheik Mohammed and four alleged accomplices would still face a capital trial at the U.S. Navy base in Cuba. The next pre-trial hearing is Jan. 28.
But the Pentagon would allege seven rather than eight war crimes, notably 2,976 counts of murder — one for each person killed when terrorists hijacked passenger planes and crashed them into the World Trade Center, the Pentagon and a Pennsylvania field on Sept. 11, 2001. Other alleged crimes include terrorism and hijacking aircraft.
A senior Pentagon official, retired Vice Adm. Bruce MacDonald, has yet to sign off on the move. But the Defense Department statement made clear that the 9/11 prosecutor was trying to drop the conspiracy charge to make the case less vulnerable to civilian court challenge.
“This action helps ensure the prosecution proceeds undeterred by legal challenge,” Army Brig. Gen. Mark Martins said the statement, which was released Wednesday afternoon.
At issue is the Oct. 16 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that overturned Guantánamo’s best-known conviction — that of Osama bin Laden’s driver. The federal court said the Pentagon had no authority to prosecute the driver, Salim Hamdan of Yemen, on a charge of “providing material support for terrorism” because his alleged crimes took place between 1996 and Nov. 24, 2001, when he was captured in Afghanistan.
Congress for the first time defined “providing material support for terrorism” as an international war crime in 2006.
Now, the federal court is hearing a similar case that argues “conspiracy” also was not an international war crime at the time of the Sept. 11 attacks. That case is an appeal by Ali Hamza al Bahlul, a Yemeni who is the only prisoner among Guantánamo’s 166 captives currently serving a judicially imposed life sentence.
The conundrum created by the conspiracy charge, and its proposed withdrawal, provided critics with another opportunity to question the war court that President George W. Bush created and President Barack Obama had reformed.
“Each time the government overreaches, eventually the courts push back. The latest move by the prosecution makes clear that it recognizes the fragility of the entire process,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch.
“The military commissions, even absent conspiracy charges, are still fundamentally flawed,” she added.
Those charged are: Mohammed, 47, a Pakistani who in a transcript of a secret 2006 military hearing at Guantánamo bragged that he devised the Sept. 11 attacks “from A to Z”; two alleged deputies in the “enterprise,” Ramzi bin al Shibh, 40, and Walid bin Attash, 34, both Yemeni; Mustafa al Hawsawi, 44, a Saudi, and Ammar al Baluchi, 35, a Pakistani.
Conspiracy is the No. 1 alleged crime on the Pentagon’s Sept. 11 charge sheet — and lays out 167 specifications, a narrative that spanned five years of meetings, training, travel and terror that began in 1996 with bin Laden’s declaring a jihad against America and Mohammed met with bin Laden to propose a plot of hijacking airplanes into buildings.
The Saudi and Baluchi, who is Mohammed’s nephew, are allegedly implicated in the conspiracy by allegedly helping the 19 Sept. 11 hijackers with wire transfers and travel arrangements to reach U.S. soil.
"Withdrawal of the conspiracy charge essentially removes the heart of the body of charges currently pending against Mr. al-Hawsawi," said Navy Cmdr. Walter Ruiz, his military defense attorney.
The Defense Department did not release the new narrative that the prosecution would be pursuing.
The move left a number of open questions, chief among them whether the Justice Department would ask the U.S. Supreme Court to take on the Hamdan case. It has until Jan. 14 to file a petition with the justices.
In a federal filing on Wednesday in the Bahlul case, Justice and Defense Department attorneys argued that the Hamdan ruling was wrong. But they said, given that decision, the court should rule swiftly and overturn Bahlul’s conviction, in what appeared to be a bid to move the issue along to the U.S. Supreme Court.
“In short, particularly with respect to conspiracy, it is plain that Congress authorized the military commission here to try Bahlul for this offense,” the government lawyer wrote.
Bahlul’s Pentagon paid appellate attorney, Michel Paradis, said he would not discuss the development because the prisoner had asked him not to make comments on the case.