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9/11 Suspects Charged With Murder and War Crimes

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Josh White
Washington Post Staff Writer
Monday, February 11, 2008; 2:00 PM

The Pentagon is charging six detainees at Guantanamo Bay with murder and war crimes in connection with the Sept. 11 terror attacks on America, and will seek the death penalty.

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Among those held at Guantanamo is Khalid Sheik Mohammed, the suspected mastermind of the attack six years ago in which hijacked planes were flown into buildings in New York and Washington. Five others are expected to be named in sworn charges.

Washington Post staff writer Josh White was online Monday, Feb. 11, at 2 p.m. ET to discuss the case.

A transcript follows.

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Josh White: Hello, and welcome to the chat. I'll get right to answering questions.

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New York: Any theory as to the timing of the indictment, apart from the campaign season?

Josh White: At this point, I am not sure that there was anything in particular that caused the charges to come down today specifically, and I think it would be a stretch to attribute the announcement to the campaign season. The Bush Administration has long made clear that it wanted to charge some of the high-value detainees in U.S. custody, especially those detainees who were allegedly linked to the Sept. 11, 2001 attacks. That Khalid Sheik Mohammed is charged should be no surprise, given that the Defense Department has called him the "mastermind" of those attacks, and the others all allegedly had connections to the planning or financing of the attacks themselves. We expected to see charges and cases begin before the end of President Bush's term, and by announcing the cases today it all but assures that we will see the cases in court -- at least in the preliminary phase -- before the end of this presidential term.

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Detroit, Mich. : Is there any knowledge as to who made the final decision for the death penalty or if the White House had any influence for this decision?

Josh White: The truly final decision on the death penalty still has yet to be made. So far, the prosecutors have recommended that each of these six men face a potential death penalty by pressing capital charges against them. Those cases now will be forwarded to the Office of Military Commissions and the Convening Authority for the commissions, Susan Crawford. Crawford has sole discretion as far as determining if the cases will go forward with the death penalty as an option. Prosecutors also have recommended that the cases against these six detainees all go forward as one joint case. Defense Secretary Robert Gates has said in the past that he hoped the death penalty would be an option in the most serious cases. Crawford will look at the cases and make a determination, which will then go forward to the court. Keep in mind that Crawford has in the past made at least one decision that went against prosecutor recommendations, when Australian David Hicks was given a plea deal that allowed him to return to his home country. He was released after just months behind bars there as part of the plea deal.

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Alexandria, Va.: What factors will the evidence allegedly gained via waterboarding (torture) play in these trials?

And outside of that specific evidence, do you see the topic of torture (and the use of it during the current "War on Terror") being brought to the forefront (rightfully so) as a result of these prosecutions?

Josh White: Brig. Gen. Thomas Hartmann said at the Pentagon today that it will be up to the court to decide what evidence, if any, obtained by waterboarding and the CIA's other enhanced interrogation techniques, will be allowed at trial. Military prosecutors have said in the past that they were not going to use any evidence obtained by waterboarding, and military lawyers have generally been against using evidence derived from abuse or torture. From my conversations with people at the Pentagon, it appears there will be every effort made to avoid using such evidence because of its questionable reliability and because of the taint it carries. As to your second question, I think these cases have long brought the topic of torture to the forefront, as we have been discussing such issues now for nearly four years, from the abuses at Abu Ghraib to the CIA's black sites, to the renewed interest recently in waterboarding. Defense attorneys probably will hit this topic very hard at any hearings related to these trials, and I would imagine this topic will follow all of these cases right up through their final appeals.

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Reston, Va.: I'm highly curious as to how it took so long to decide to lay charges against these men. It's seven years later -- what took the government so long?

Josh White: It does seem like it has taken a long time to levy charges against these men, especially in light of the fact that others have been tried and convicted in terror-related cases in U.S. courts over the past several years. One major difference is that these men -- with one exception -- were held in secret CIA facilities until September 2006, which meant they were not in Defense Department or Justice Department control and were not part of the public process until then. Since their transfer to the U.S. military facility at Guantanamo Bay, prosecutors have been working to press cases against them while also pursuing other ongoing military commissions cases. Another consideration is the fact that there have been a number of challenges to the military commissions process, some that have reached the Supreme Court, causing Congress to rewrite the rules for the trials. It has been a long time since the Sept. 11 attacks, and it has taken a long time to get to these first prosecutions for them at Guantanamo.

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Washington, D.C.: Are all six of these among the "high value" detainees that were previously held in CIA secret detention facilities before transfer to GITMO? The importance, here, is that many in the unsuspecting and uninformed American public are going to react to this story by thinking "ah-ha! so all of those people in GITMO ARE terrorists! Everyone of them!" In reality, those "high value" detainees are not representative of the hundreds of GITMO detainees who have been there for 5-6 years, most of whom will never be charged with a crime (and most of whom were sold for bounties to the U.S. by Pakistani intelligence and Northern Aliiance commanders).

Please clarify this. it's an important part of the story that's missing from Branigan's report.

Josh White: Five of these detainees were among the "high value" detainees who were previously held in CIA custody, while one of them has been in Defense Department custody at Guantanamo Bay for years. It is fair to say that these six men do not represent the majority of detainees at Guantanamo, nor are they representative of the type of detainees at Guantanamo. These are men who allegedly had direct ties to the Sept. 11 attacks, whether it was planning them, financing them, or in one case attempting to take part in them directly.

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Reading, Pa.: Will there be any chance that the American public will ever get details of these "trials" since they will be by military tribunal? This is all but a foregone conclusion isn't it?

Josh White: The American public should get almost all the details of these trials becuase there will be journalists attending all of the cases as well as outside non-government organizations monitoring them. It is possible that there will be some classified information that will be kept hidden from the public -- and there are critics who say that such information will defeat the purpose of an open trial -- but Pentagon officials hope to minimize that. As far as it being a foregone conclusion, I don't think it's possible to say how these cases will turn out. Someone like KSM, for example, has admitted his role in the attacks and could use the trial as a way to spread his message. Others likely will challenge the cases vigorously. We will be there to share what happens with the public as best we can.

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Richmond, Va.:

Another consideration is the fact that there have been a number of challenges to the military commissions process, some that have reached the Supreme Court, causing Congress to rewrite the rules for the trials.

When did Congress rewrite these rules, and where could one find those new rules?

Josh White: Congress wrote the Military Commissions Act of 2006 in October, 2006, and that has been the guidance that the Defense Department has used in developing the rules of trial and the procedures that have been followed so far. You can find a copy of the rules here:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ366.109.pdf

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Kansas City, Mo.: How long will these cases run, including any final appeals?

Josh White: That is a very hard question to answer. After Susan Crawford sends the cases to military commissions, the men will be arraigned within 30 days. You could then expect to see some preliminary court hearings by late spring or early summer, and trials some time after that. But we are in uncharted waters, because the only previous military commissions case that concluded was a plea deal that forced the defendant to forego appeals. These cases, especially with the death penalty involved, will most certainly be appealed to the new Court for Military Commissions Review and then to the D.C. Circuit Court, and possibly to the Supreme Court. It could take some time.

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Re: Timing: So do you have any opinion about whether this is timed to make terror one of the key issues of the presidential election?

Josh White: It is possible, but it probably has more to do with the Bush Administration wanting to try some of the people allegedly tied closely to the Sept. 11 attacks before the end of President Bush's term in office. This at least starts that process. It was interesting to me that they have not formally charged Osama Bin Laden at military commission -- they obviously do not have him in custody -- but the focus has turned instead to KSM, who they are calling the "mastermind" of the attacks.

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Philadelphia, Pa.: Why do we continue to seek the death penalty for these types of people? If they are guilty, then they have INFORMATION and KNOWLEDGE. Certainly it's better to keep them alive. (Unless they are like Timothy McVeigh, and they are afraid of what he knows.)

Josh White: Top administration officials have long said they would like to pursue the death penalty against those people they believe were responsible for the tragic attacks on the Pentagon, the World Trade Center and the airplane that went down in Pennsylvania. It is unclear whether that will actually happen, as the process has just started. True, they likely have information and knowledge, information and knowledge that they have been asked about continuously for the past several years. Most of that information is probably outdated at this point. The question is really: Do the American people want the death penalty for the people responsible for those attacks? That is a fundamental question about the death penalty that I can't answer.

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washingtonpost.com: Military Act of 2006 (pdf)

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Upland, Calif.: Is it true that waterboarding is a well-known technique for torturing someone into confessing to anything that you want?

Josh White: I wouldn't put it that way, but it is clear that waterboarding puts someone in a position that they desperately want to get out of for fear of death. There are numerous experts -- including those who trained U.S. forces in how to survive such techniques -- who consider it torture that will produce unreliable answers. It is possible that when subjected to an extreme technique, people will say anything to get it to stop. We don't know at this point what U.S. authorities learned while using the technique nor how reliable that information was.

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Richmond, Va.: Where will the trials be held physically? Guantanamo?

Josh White: Unless plans change, the trials will be held at a secure courtroom at Guantanamo Bay. I have been in the courtroom, and it is a modern facility that looks like many courtrooms in the United States, though it is far more heavily guarded. Brig. Gen. Hartmann said today that the trials will not be broadcast on television but that an arrangement will be made for families of the 9/11 victims to watch at a secure location elsewhere.

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Arlington, Va.: Any word on if other cases (of those held at GITMO) will be going to trial, and what the timeline for formal prosecution might be for those held for "years" with no specific charges being brought?

Josh White: We have been told that as many as 80 cases could go to military commission, so I would expect we will see many more trials in the future. There are some people who have not been formally charged and might never be charged but who the U.S. considers too dangerous for release. It is unclear what will happen with those detainees.

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Ann Arbor, Mich.: How, if at all, will a change in the occupant of the White House affect the prosecution of these cases?

Josh White: That's hard to say at this point. The military commissions are currently part of U.S. law, and the prosecutions most likely will be well underway by then. It is possible that Congress could rewrite the law again. I'm not sure what a new president would do, but there are a lot of possibilities, including shutting Guantanamo entirely. I have not yet heard what the alternative to that would be.

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Washington, D.C.: Is the Military Commissions Act of 2006 constitutional? Would the six who were charged be able to challenge the constitutionality of the Military Commissions Act of 2006?

Josh White: That is a question for the Supreme Court, and one that the court has been grappling with. And the six who were charged most likely will challenge the constitutionality of the process, as well as whatever verdicts come from it.

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Perception and Reality: Given the utter lack of credibility of the U.S. government -- and I don't think that's overstating it -- what difference does a trial make? I can't imagine that the process, even if it is legitimate (in other words, actual evidence beyond confessions and innuendo, cross-examination and so forth) will be perceived as such. I suspect a good portion of the public will see it as just another political gambit rather than any concrete and credible action against terrorists. Do you think that the prosecution sees their own credibility as an issue?

Josh White: Credibility is a huge issue in these cases, both domestically and internationally. Human rights groups argue that the best way to deal with that is to move the cases to U.S. federal courts. The trials will be an opportunity for the government to present the evidence it has gathered over seven years, and to demonstrate to the public why they have been holding these men in captivity. It will also allow the suspects to challenge that evidence and potentially reveal the circumstances of their capture and whether they are, in fact, the right men.

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Bealeton, Va.: Did the Pentagon give any indication of when the remaining detainees at Guantanamo are either going to be tried or released?

Josh White: In short, no. Dozens still could go to military commissions, while the Pentagon and State Department are still seeking to repatriate others. There will be a group of detainees for which neither option works, and I don't know what will happen to those men. The next president will probably decide.

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Josh White: Thank you for sending in all the great questions, and I'm sorry if there were some I did not get to. We will continue to try to shed light on this process and will do our best to show how it is progressing.

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Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.


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