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Amid Death-Penalty Doubts, 9/11 Suspects Withdraw Offer to Confess

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By Peter Finn
Washington Post Staff Writer
Tuesday, December 9, 2008

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.

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"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."


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