A Boost to 9/11 Trials

Karen Greenberg in Newsweek, February 29, 2012

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A plea deal struck between U.S. military prosecutors and a Pakistani detainee at Guantanamo Bay will likely speed the stalled trials of Sept. 11 suspects, experts say.
Majid Khan, 32, who has spent the last nine years behind bars, is expected to plead guilty today to a raft of charges connected to his role in alleged terror plots hatched by accused Sept. 11 mastermind Khalid Sheikh Mohammed. In exchange for a reduced sentence of 25 years, Khan will testify against other “high value” detainees, including Mohammed and four others alleged to have taken part in the 2001 attacks. Many of the terms of the plea agreement remain classified, and The Washington Post reported that the military plans to delay Khan’s sentencing for four years to ensure he complies with the agreement.
“It’s part of a strategy of building more solid cases against the handful of defendants that the government plans to try before the commissions,” said Jonathan Hafetz, a lawyer who has represented other Guantanamo detainees.
More than 10 years after the Sept. 11 attacks, Mohammed and four co-defendants accused of plotting them are still awaiting trial at the prison, part of a U.S. naval base in Cuba. Since the special military tribunals were authorized to try “enemy combatants” during the administration of President George W. Bush, six prisoners have been brought before the tribunals, with four pleading guilty.
Col. Morris Davis, a former chief military prosecutor, has noted that more Guantanamo detainees have died since the U.S.-run prison was established in 2002 than have been tried before the tribunals.
Khan is accused of working under Mohammed’s direction to plan explosions of fuel tanks at U.S. gasoline stations and to deliver funds for a bomb attack at a Marriott hotel in Jakarta, Indonesia, that killed 11 people in August 2003.
“If Khan provides information on KSM and others, as has been suggested, it will no doubt speed up the prosecutions,” said Karen Greenberg, a terrorism expert at Fordham Law School, referring to Mohammed, who had been scheduled to be arraigned earlier this month. “If Khan does provide information on KSM and others ... it will break through the barriers presented by evidence obtained through torture, as this information will be presented in the present time and in a legal proceeding.”
The agreement with Khan is the first plea bargain among 14 Guantanamo detainees the U.S. military classifies as “high value.”
US President Barack Obama—criticized for failing to live up to his promise to shut down Guantanamo's prison by 2010—could benefit from the speedy prosecutions as he seeks a new term in November elections.
Over the years, 779 inmates have been detained at Guantanamo, most without charge or trial. Most have been transferred to their home countries or third countries in recent years and released. Today, 171people are still languishing there in limbo, including 89 detainees who have been cleared for release but are still in custody, thanks to a law passed by the U.S. Congress. For the other detainees who remain, pleading guilty may be the only way to guarantee that they one day leave the facility.
“The irony is that if you’re charged with a crime and make a plea deal, you know you’ll be released someday and have some idea when. You have an endpoint,” says David Remes, who has represented several detainees. “But if you’re not accused of a crime, you don’t know whether you’ll ever be released, much less when. That may be the crueler fate. The system is upside-down.”