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Accused Sept. 11 Plotter Has First Tribunal Hearing

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Christopher Amolsch
Criminal Defense Lawyer
Friday, June 6, 2008; 3:00 PM

Criminal defense attorney Christopher Amolsch was online Friday, June 6, at 3 p.m. ET to discuss Thursday's military tribunal hearings for alleged Sept. 11 planner Khalid Sheikh Mohammed and three other Guantanamo detainees.

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Alleged 9/11 Mastermind Seeks Death Penalty, Martyrdom, (Post, June 5)

The transcript follows.

Amolsch has handled major terrorism cases, including defending Abdur-Raheem, who was accused of participating in a Virginia "jihad network" and was later acquitted. He was a founder of the District's Innocence Project.

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Washington: We have used military tribunals in every war since the Revolutionary War. Do you see the move to delegitimize them as political? I mean, they are the way we deal with soldiers we pick up in battle ... and these guys are fighting for a stateless army. It seems more like people don't understand what they are, but because Bush is doing it, they assume tribunals must be bad.

Christopher Amolsch: The issue is not whether military tribunals in general are legitimate; the question is whether these tribunals are legitimate. The Military Commissions Act -- which established these tribunals and controls their process -- is so rigged that, unlike a normal military tribunal, the result is a foregone conclusion. These tribunals were set up to ensure convictions, not justice, and that is the problem.

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Los Angeles: What effect if any will the U.S. use of torture on defendants (i.e. waterboarding approved by the president) have on tribunal proceedings, evidence presented or potential verdicts? As part of their defense, can defendants allege the U.S. violated Geneva Conventions banning torture? If so, does the U.S. have adequate responses? If guilty verdicts result, can defendants appeal to U.S. federal courts?

Christopher Amolsch: The Military Commissions Act specifically allows for the use of evidence obtained as a result of coercive interrogation technique if the judge thinks it is "reliabl." The Military Commissions Act also allows the defense to challenge evidence obtained as a result of torture. That sounds good until you realize that the government does not have to disclose how the information was obtained, thereby making it impossible to challenge any evidence as either "unreliable" or a result of torture.

There are limited appeal rights, but they are so limited as to essentially meaningless.

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Auberry, Calif.: Two questions, actually: First, assuming that Sept. 11 is considered to be a Law of War violation rather than ordinary criminal law, what should be the appropriate venue be -- either Federal District Court, or a military trial, whether a court-martial or a tribunal? And second, given that there have been leaks in the past (as in the East Africa Embassy trial, where Osama bin Laden's use of a satellite phone got leaked and now he doesn't use it), how can classified information be made available to the defense without it getting back to al-Qaeda Central, in either a civil trial or military one? I personally prefer the military system, as the all the lawyers would have the proper clearances, and they would know the consequences if there was a leak and it got back to al-Qaeda.

Christopher Amolsch: The detainees can be tried under either the law of war or in civilian courts. The terrorists in 1993 attack on the World Trade Center were tried in federal court in New York, as was Moussaoui in Alexandria, Va., where I practice.

Any classified information can be protected pursuant to CIPA -- the Classified Information Protection Act. If the government can try spied like Robert Hanssen, Aldrich Ames, etc., in federal court -- all of whom had lawyers who reviewed highly classified information -- it surely can try KSM et al.

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Washington: As a former defense attorney, I am curious how you can "zealously represent your client within the bounds of the law," while your client is seeking martyrdom? Also, would you please share the tortures that he has claimed to have undergone during the past five years, including noting whether Guantanamo is now a respite from torture, or if he is claiming that he is being further tortured there? Lastly, does Mohammed believe that he would not have been tortured elsewhere if a different nation had suffered a Sept. 11?

Christopher Amolsch: That is an excellent question to which I do not have a good answer, other than you try your best. I have had clients who have wished to be executed and who have done everything to get convicted for a cause. You do what you can.

The tortures KSM has undergone are pretty widely available on the 'Net. Whether he would have suffered the same or worse is not really the issue -- we have our own obligations to which we must adhere.

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Tampa, Fla.: What's to stop Mohammed from pleading guilty and not fight the death penalty?

Christopher Amolsch: Only the judge. If he wants to plead guilty, only the judge can prevent him by refusing to accept the plea.

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Bend, Ore.: I'm confused -- the four were arraigned as a group? Will they have separate trials?

Christopher Amolsch: Not sure. Standard criminal law practice allows for separate trials in some instances. but we are in uncharted territory here. There is no guidance for the judge on what to do.

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Washington: Did all five defendants fire their attorneys and elect to proceed pro se?

Christopher Amolsch: Not sure. KSM tried and the others likely will follow suit. The entire thing is such a charade that their only choice is to not legitimize the proceedings by participating.

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kesac: Since when in the history of the world, have enemy detainees been given a trial while the state of war existed? Never. Our Constitution provides for no such thing, and the Geneva Convention calls for no such thing. No POW of WWII, Korea or Vietnam ever was given a trial, and no silly liberal ever complained of that fact.

Christopher Amolsch: First, it is an open question whether a state of war exists. War is generally understood to occur between nation states, and our Constitution requires a declaration of war. Both of those ingredients are missing.

Second, our constitution forbids the indefinite detention of anyone over whom the United States has jurisdiction. Gitmo is within our jurisdiction and the law is clear that these detainees do in fact enjoy the protection of our Constitution.

This is not a liberal or conservative issue.

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Washington: If they are seeking martyrdom, one would thing they would want the opportunity, in the words of Judge Kohlmann "to set the record straight," regardless of whether the proceeding is legitimate in their eyes or not. Will they be given the opportunity to do this? Also, even if the government does not disclose if information was obtained by way of torture, the defendants can do this. Are they generally cooperating with defense counsel -- as best one could expect?

Christopher Amolsch: You would think that all of the detainees would be given an opportunity to speak at some point, if only before they are sentenced.

The defendants can allege torture, but they have no means by which to prove that their allegations are in fact true. If the government denies the allegations, then what?

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Franconia, Va.: I'm sorry, but it is a "state of war." I was in the Pentagon when the plane hit.

Christopher Amolsch: You have my deepest respect, and I thank you for serving, but with whom are we at a state of war? Which nation? Is Spain in a state of war with ETA? Is Britain in a state of war with the IRA? We are fighting with terrorists, as are all civilized nations -- but that is a different thing, I think.

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Washington: Is there a fee cap in this kind of representation, as with CJA work, or is this more like Kunstler of years ago, where counsel obtained financial support for representation from private sources? I can't imagine the government would not seize such funds, as is done periodically with drug kingpins.

Christopher Amolsch: The lawyers representing the detainees are all military lawyers. The Military Commission Acts allows the detainees to have separate civilian counsel but the Act does not provide for compensation. Various organizations are trying to raise money to put towards civilian counsel. Right now, almost all (if not all) of the lawyers have been working pro se.

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Alexandria, Va.: What would be the political impact, especially in Europe, if the defendants defend themselves and are sentenced to death?

Christopher Amolsch: We are one of the remaining Western countries that still allows the death penalty in any circumstance. Even South Africa has banned the death penalty, so we are in quite a unique moral group, with the likes of Yemen, China, Saudi Arabia.

The reality is that these detainees likely never will be tried at Gitmo. McCain and Obama are both on record as saying they will shut Gitmo down, and there is no way the trials will happen before a new administration comes in. Even this administration could not sanction a trial of this magnitude where the lawyers are given only a few months to prepare.

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Fredericksburg, Va.: What would your feelings be if KSM and others were found not guilty predicated on a legal technicality, were released, and then -- as has been documented with many terrorists released from Gitmo -- returned to the battlefield to perpetrate additional murders? Just doing my job? That's not my concern? It's not me, it's the system? Oops, sorry about that?

Christopher Amolsch: In all my years practicing, I have never had a client released on a "technicality," unless you think of our constitutional rights as "technicalities."

Also, I am not saying that KSM shouldn't be tried and convicted. The man has told anyone who will listen that he is guilty -- how hard can it be to get a conviction?

And if he is released and returns to terrorist activities, then you should blame the government for not doing a better job.

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Christopher Amolsch: Thank you all for participating. Regardless of your political persuasion, these tribunals will define us internationally for some time.

My own perspective is that terrorists should be tried in federal court, not in secret military prisons. I have handled terrorism cases in Alexandria, Va., so I know it can be done in a way that engenders international respect rather than scorn.

Take care.

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