Fordham Law


Experts hint at uncomfortable uncertainty in 9/11 trial

Karen Greenberg in The Daily News, May 06, 2012

Media Source

GUANTANAMO BAY, Cuba — Experts watching the capital case against Khalid Sheikh Mohammed and his 9/11 cronies see only two safe bets: months of motions and a trial — eventually. “You have to be uncomfortable with all the unknowns,” said Karen Greenberg of Fordham Law School’s Center on National Security. In their second crack at trying foreign terrorists before military commissions, Congress and the Pentagon have tried to create a near-mirror image of stateside civilian courts. The circumstances, however, are anything but familiar — from the heinous crimes alleged to torture during the defendants’ interrogations. “I don’t think anybody has any idea of the specifics because we’re in such uncharted territory,” said former Army JAG lawyer Victor Hansen of the National Institute for Military Justice. KSM’s behavior itself is a major X-factor. The stubborn, defiant detainee mocked earlier proceedings in court — refusing to leave his cell at times.

KSM, CO-DEFENDENTS APPEAR IN COURT FOR ARRAIGNMENT

In 2008 he demanded to represent himself, and said he and his cohorts wanted to enter guilty pleas. Motions on their mental competency to enter pleas were pending when the first Guantanamo case was scrapped in 2009. Greenberg doubts KSM will be permitted to enter a plea, clearing the way for an actual trial. “The last thing the Military Commissions want is a plea,” Greenberg said. “They want to try the case and ... establish a narrative of what happened. That’s why you have a trial.” If any of the defendants demand a trial, Chief Judge Col. James Pohl must consider whether their goal is airing the facts or a forum for political theater, said American University law professor Stephen Vladeck. Observers predict a tug-of-war over disclosure of classified evidence that could betray intelligence sources and methods, while defense lawyers will seek to undermine the legitimacy of the trial, arguing the defendants were tortured. Vladeck noted the top prosecutor, Army Brig. Gen. Mark Martins, has pledged a transparent trial. But “there’s going to come a point with some of the evidence where that’s not going to be possible,” Vladeck said. Pohl is expected to entertain endless defense motions to ensure the legitimacy of the process. “I think we’re in for many months of motions regardless of what (KSM) does,” Hansen said.