The appointment of a well-respected ex-Navy lawyer to oversee war-crime trials is being seen in military legal circles as a sign the Obama administration might reverse its decision to bring Khalid Shaikh Mohammed to New York for a civilian trial.
At the same time, a pending speedy-trial ruling in a second terror case in New York could give Attorney General Eric H. Holder Jr. an escape route through which he could switch the trial of Shaikh Mohammed (KSM) from federal court back to a military system set up by former President George W. Bush and Congress.
In February, the White House and Mr. Holder left open the possibility of a war-crimes trial for Shaikh Mohammed, the admitted 9/11 attack mastermind. This would reverse Mr. Holder's much-criticized decision in November to bring the al Qaeda heavyweight to the federal court system, where he would enjoy more rights and perhaps a media forum for anti-American propaganda.
A month after the administration signaled a reversal, the Pentagon, with significant White House input, named retired Navy Vice Adm. Bruce MacDonald as the war-crimes convening authority. In that post, the Navy's former top lawyer is the official who brings criminal charges, selects jury pools, approves defense- lawyer expenses and makes other rulings.
Charles Stimson, the Pentagon's director of detainee affairs in the Bush administration and who still monitors terror prosecutions as a legal analyst at the Heritage Foundation, noted the significance of the MacDonald appointment.
"Picking Bruce does not prove that KSM is going to commission, but what it does show is that Bruce would not have taken the leap if he did not think he was going to get some substantive cases, because he's a worker guy. He likes real work," said Mr. Stimson. "And the White House and [Defense Department General Counsel] Jeh Johnson would not have asked Bruce to come over."
Added Mr. Stimson, a former prosecutor and currently a Navy reserve judge advocate: "They are essentially bringing 'Michael Jordan' in to head up commissions. And what that tells you is that they either want Michael Jordan there to handle the relatively uninteresting cases, or they're bringing him in because they want to be prepared if and when they have to relent and send KSM back there for lack of a better political option. So they want to have the A Team in place."
Adm. MacDonald has a master's degree in international law from Harvard University. He rose to the rank of three-star admiral and the Navy's top uniformed lawyer. He has provided advice to Congress and the Pentagon on detainee affairs.
Retired Brig. Gen. Thomas Hemingway agreed that Adm. MacDonald would not have taken the job unless he expected to oversee major terror cases. Gen. Hemingway, who was recalled to active duty in 2003 to become the chief legal adviser to the then-convening authority, said moving KSM back to a tribunal is "the right decision to make."
He said Congress has improved the military tribunal system so that the defense has access to all the evidence. "There is no 'hide the ball,'" he said. "Evidence derived from torture is clearly excluded. … There's nothing wrong with military commissions now that transparency and public diplomacy cannot address."
In addition, convicted detainees now have access to three appeals courts, he said.
"You actually have greater appellate rights now in military commissions than you would before any of the international tribunals," Gen. Hemingway said. "It's always been curious to me that people who have been great supporters of the International Criminal Court have opposed military commissions."
Of the hundreds of terror suspects who have been held at the U.S. military prison at Guantanamo Bay, Cuba, only three have faced trial. All were convicted.
Of the less than 200 detainees currently at Guantanamo, the administration plans to try 30 or more in civilian or military courts. The rest would be released to a home country or held indefinitely.
The speedy-trial issue arises in the prosecution of Ahmed Khalfan Ghailani, a former Osama bin Laden aide and explosives expert charged in the 1998 East African embassy bombings that killed 224.
Mr. Holder also decided to bring Ghailani out of the prison and military court system at Guantanamo Bay and reindict him for civilian trial.
His civilian lawyers want U.S. District Court Judge Lewis A. Kaplan to dismiss charges on grounds that Ghailani was denied a speedy trial under the Constitution's Sixth Amendment. There is no such guarantee in the law establishing the war tribunals on the theory that enemy combatants may be held for intelligence value, then tried.
The CIA nabbed Ghailani in Pakistan in 2004, held him in a secret prison for two years, then brought him to the military prison in Cuba. A year ago, the defendant was flown to New York for federal trial.
If Judge Kaplan rules Ghailani's speedy-trial right was violated and appeals courts agree, Mr. Holder would have his out. He could announce he has no choice other than to send Ghailani back to Gitmo and keep Shaikh Mohammed there for trial so the terrorist suspects are not set free.
Judge Kaplan already has ruled on one defense motion, refusing to dismiss charges based on the CIA's harsh interrogation techniques.
"The more interesting ruling that the judge has not opined on yet is the speedy-trial issue," said Mr. Stimson. "Quite honestly, if Judge Kaplan rules that the government violated Ghailani's speedy-trial rights by not bringing him to trial in an appropriate period of time and dismisses the charges, that ruling, if it stands, marks the end of federal court for anybody at Gitmo because then the commission is the only way to go because military commissions don't allow for speedy- trial motions."
"The government's position is that the accused was an enemy combatant while he was in custody, not a criminal suspect," Mr. Stimson said. "Enemy combatants have no trial rights per se, because they are not candidates for trial. Once the government decided to 'convert' him to a criminal suspect, they brought him to trial in a timely manner and did not violate his speedy-trial rights."
The Criminal Justice Legal Foundation, which supports prosecutors, has filed a brief arguing that Ghailani was not in the federal court system until a year ago, so his speedy-trial rights remain intact.
"The delay in the prosecution of this case has been caused by the defendant's own acts of evading capture and by the overriding imperative of gathering intelligence from him to prevent further attacks on Americans," Kent Scheidegger, the group's legal director, said in a statement.
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