By Peter Finn
Washington Post Staff Writer
Tuesday, January 20, 2009
GUANTANAMO BAY, Cuba, Jan. 19 -- On the eve of Barack Obama's presidential inauguration, military commission proceedings lumbered forward against five men accused of organizing the Sept. 11, 2001, attacks and, separately, against a Canadian charged with killing a U.S. soldier in Afghanistan. But with the president-elect having promised to close down the detention facility here, the military base was infused with a sense that this legal process is doomed.
Both the prosecution and defense had sought a delay, which was denied, and government officials here are expecting an order down the chain of command shortly after the inauguration telling them to halt proceedings, sources said.
Judge Stephen R. Henley, an Army colonel, intimated several times Monday that the rulings he issued or the matters under discussion in a series of pretrial motions might well be moot.
"If later sessions are scheduled," Henley said, addressing one legal matter. Later he referred to "the next session -- should it occur." He also said, "It will be scheduled -- if at all -- in the future."
"You get a sense from the judge's statements that the commissions are going to stop very soon," said Army Maj. Jon Jackson, military counsel for Mustafa Ahmed al-Hawsawi, a Saudi national accused of war crimes and murder for his alleged role in the 9/11 attacks.
Obama has not detailed a process to shut down the detention center, but defense attorneys here anticipate that he will suspend proceedings before laying out a plan to deal with the roughly 245 detainees who remain imprisoned. Some detainees are likely to be returned home, others resettled in third countries, and an unknown number transferred to federal courts or military courts-martial for prosecution.
At the 9/11 hearing Monday, the defendants gave no indication that they were aware of any pending decision by Obama. But the proceeding was again marked by interjections from Khalid Sheik Mohammed, who asserted responsibility for organizing the attacks, as he has in the past, but with an apparent dig at his ostensible boss.
"I am the mastermind of 9/11, not Osama bin Laden," Mohammed said during argument over whether the case needed to be re-arraigned because of a technical error by Susan Crawford, the Pentagon official charged with deciding who goes to trial at Guantanamo. The judge ruled that the case could go forward despite the error.
Mohammed also waved a copy of The Washington Post containing an article by Bob Woodward in which Crawford said another detainee was tortured at Guantanamo Bay. The matter arose during a discussion about an order signed by the judge to protect classified information, which the defense said was too broad.
One of the defense attorneys argued that the order would prevent them from discussing the article containing Crawford's statements or any public document that referred to the CIA or other intelligence agencies.
"Everybody knows this order was written by the CIA," Mohammed said. "Their true reason is to protect themselves against their own wrongdoing."
During the discussion, a civilian lawyer advising Mohammed noted that his daughter lives in Iran and has tuberculosis. He said the order prevented his passing information to Iran that Mohammed had provided about his family's medical history because defendants' statements are presumptively classified. The judge said he might amend the order.
Relatives of the victims of the Sept. 11 attacks attended proceedings for the second time, and some of them were struck by the minutiae that came up in court.
At one point, Mohammed disputed a claim by the prosecution that cushions were provided to the defendants to compensate for the time they spent sitting on hard benches in a van that takes them to court. "It's not true that they put cushions," Mohammed said.
"It's slow-going, but we're patient," said Jimmy Riches, a retired New York City firefighter, who carried the body of his son Jimmy, also a firefighter, from the rubble of the World Trade Center.
Among the 779 people who have passed through Guantanamo, three have had trials. Riches said he had no objection to the Obama administration moving the proceeding to another court as long as a fair proceeding is followed by the death penalty for defendants who, he noted, have admitted they helped organize the attacks.
Not all relatives of 9/11 victims agreed. "Mr. Obama needs to reexamine his stance and he needs to keep these tribunals going," said Donald Arias, a retired Air Force officer who lost his brother Adam in the attack on New York.
Another of the defendants, Ramzi Binalshibh, said in court Monday: "We are proud of 9/11."
Obama's administration will face a thicket of legal, logistical and diplomatic hurdles to achieve its aims, including deciding whether to halt the imminent trial of Omar Khadr, the Canadian, who was 15 when he was detained in Afghanistan. The administration is under pressure from rights groups not to allow the trial of someone who was a "child soldier" at the time of his capture.
If Khadr's trial goes ahead next Monday, the Obama administration will find it difficult if not impossible to transfer him to another legal forum because of double jeopardy, defense attorneys said.