No CIA Interrogation Evidence to be Used in Trial of KSM et. al.

DoD has announced today that charges have been sworn against six detainees alleged to have been involved in the September 11th attacks.

Swearing of Charges- The cases have been sworn as capital cases and have been sworn collectively (e.g. all six will be on trial at once as co-conspirators).  The new courtroom which is complete and will be operational in March has six defense tables and three prosecution tables, so the facilities can accomodate this number of defendants and counsel.  Also, the new courtrooms have a glass wall which will allow the court to mute any discussion of classified information, but observers will still be able to observe what the parties are doing.  This is similar to the international tribunals in the Hague with the exception that those international tribunals feature a steel wall which is lowered during the discussion of classified information, preventing observers from even seeing the parties.

The fact that these cases have been sworn as capital does not mean that the convening authority will refer them as capital, the convening authority has the discretion to bump charges down (e.g. from capital to non-capital, but cannot bump them up).  In my opinion it is probably a better idea to let KSM languish in the general population of a prison, rather than execute them so their faces can appear in martyrdom videos and Al Qaeda propaganda.

After swearing, the convening authority reviews the charges for legal sufficiency and determines whether there is reasonable belief/probable cause that the evidence the government has put forth will support the charges alleged.  There is no time limit for this review.  Once the convening authority concludes that there is reasonable belief the evidence supports the charges, she refers it to trial.

Referral and Trial- Once referred the detainees must be arrainged within 30 days.  The trial clock also begins at referral requiring that the accused be brought to trial within 120 days from referral.  The trial clock stops for delays such as motions by the defense.  For example, the Khadr case was referred in early May 2007, he was arrainged on November 8, 2007, however only 28 days of the 120 day clock have been used as a result of delay requests and appeals by the defense.

CIA Interrogation Evidence-  Perhaps most importantly, a senior DoD official confirmed today that NO CIA interrogation evidence will be used in these trials.  Much has been made lately of the waterboarding of three detainees, not using evidence derived from these interrogations may avoid some defense challenges.  Also, it is important to note that information derived from torture cannot legally be used in the proceedings given the MCA’s explicit ban on such evidence.  (Not everyone agrees the MCA’s ban is explicit).

Clearly, some of the six detainees could be tried on publicly available information.  For example, KSM admitted responsibility for the September 11th attacks in his CSRT.  Stating “I was responsible for the 9/11 operation, from A to Z,” .

Appeals– If convicted all of these detainees will enjoy an automatic appeal to the Court of Military Commission Review.  They also will have optional appeals to the D.C. Circuit Court of Appeal and the U.S. Supreme Court.

The accused are:

1.         Khalid Sheikh Mohammed- “the mastermind of the Sept. 11 attacks by proposing the operational concept to Usama bin Laden as early as 1996, obtaining approval and funding from Usama bin Laden for the attacks, overseeing the entire operation, and training the hijackers in all aspects of the operation in Afghanistan and Pakistan.”

2.         Walid Bin ‘Attash- “is alleged to have administered an al Qaeda training camp in Logar, Afghanistan where two of the 19 Sept. 11 hijackers were trained. He is also alleged to have traveled to Malaysia in 1999 to observe airport security by U. S. air carriers to assist in formulating the hijacking plan.”

3.         Ramzi Binalshibh- “alleged to have lived with the Hamburg, Germany, al Qaeda cell where three of the Sept. 11 hijackers resided. It is alleged that Binalshibh was originally selected by Usama bin Laden to be one of the Sept. 11 hijackers and that he made a “martyr video” in preparation for the operation.  He was unable to obtain a US visa and, therefore, could not enter the United States as the other hijackers did. In light of this, it is alleged that Binalshibh assisted in finding flight schools for the hijackers in the United States, and continued to assist the conspiracy by engaging in numerous financial transactions in support of the Sept. 11 operation.”

4.         Ali Abdul Aziz Ali- “alleged to have included sending approximately $120,000 to the hijackers for their expenses and flight training, and facilitating travel to the United States for nine of the hijackers.”

5.         Mustafa Ahmed Adam al Hawsawi- “alleged to have assisted and prepared the hijackers with money, western clothing, traveler’s checks and credit cards.  He is also alleged to have facilitated the transfer of thousands of dollars between the accounts of alleged Sept. 11 hijackers and himself on Sept. 11, 2001.”

6.         Mohamed al Kahtani- “alleged to have attempted to enter the United States on August 4, 2001, through Orlando International Airport where he was denied entry.  It is also alleged that al Kahtani carried $2,800 in cash and had an itinerary listing a phone number associated with Hawsawi.”