- The Washington Times - Friday, September 9, 2011

The military officer overseeing the prosecution of Khalid Shaikh Mohammed is taking a go-slow approach that would bring the confessed Sept. 11 mastermind to trial months, or perhaps years, from now.

It was seven years ago when the CIA in Pakistan captured Mohammed and eventually turned him over to U.S. military custody for a war-crimes trial at U.S. Naval Base Guantanamo Bay, Cuba.

It was six months ago when Attorney General Eric H. Holder Jr. relented to political pressure in New York and Washington and reversed his decision to try Mohammed in a civilian court in the Big Apple.

Since then, retired Navy Vice Adm. Bruce MacDonald, who as the “convening authority” is overseeing prosecutions of terrorism suspects by military commissions, has set out a step-by-step process behind the scenes to begin the most prominent trial of the five 9/11 co-conspirators held at Guantanamo.

Charles Stimson, former Pentagon adviser to the defense secretary on detainee affairs, said Adm. MacDonald is making sure every detail is addressed to ensure that appeals courts will view the military commission process as fair.

“Unlike previous attempts to get the commission started against [Mohammed] and his four co-conspirators, the convening authority has taken a very different approach, and the approach mirrors in practice what happens in the civilian sector at the state and federal level,” said Mr. Stimson, a commander in the Navy Reserve who serves as a military judge.

“People want justice for the acts of 9/11,” Mr. Stimson said. “Justice delayed, in their minds, is justice denied, as the saying goes.

“The fact that there has not been a trial for the acts of 9/11 is frustrating to many people. In their minds, it has just taken too long. They want [Mohammed] and any co-conspirators tried in a court of law and held responsible for their actions,” he said.

“The convening authority has decided, to ensure a fair and impartial trial, each side should be given the resources they need upfront. And that just takes time,” Mr. Stimson said.

One time-consuming change by Adm. MacDonald is to hear defense attorneys’ requests for “mitigation experts” — people who would testify for the defense at a post-conviction hearing at which the military would seek the death penalty.

Approving the witnesses now, Mr. Stimson said, would in theory blunt an appeal argument that the defense was denied access to such experts during trial whose information should have gone to the jury then, not at sentencing. Such experts might testify about Mohammed’s childhood or mental state.

“The convening authority is listening and actively soliciting information from the defense about why they believe capital punishment should be off the table upfront,” Mr. Stimson said. “At the same time, he is soliciting information from them regarding what mitigation experts they would want were there a trial and he was convicted at all.

“This is smart, and it is smart for a variety of reasons,” Mr. Stimson said. “If [Adm. MacDonald] delayed this decision, that would delay the trial even if the trial gets started. It could delay it for a long period of time. And, more importantly, it could result in a conviction being overturned on appeal.”

Retired Brig. Gen. Thomas Hemingway, a former top legal adviser to the commission convening authority, said that while Mr. Holder was mulling the Mohammed case, President Obama changed the Manual for Military Commissions by executive order in 2010. The change requires that defendants facing capital charges in military tribunals have access to a “learned counsel” — a lawyer experienced in death-penalty cases.

“Much of the time since April has been consumed by finding ‘learned counsel’ and going through the process to secure such counsel the requisite security clearance,” Gen. Hemingway said.

Mohammed’s “learned counsel” is David Nevin, a defense lawyer in Boise, Idaho. Mohammed also is being defended by an Army and a Marine Corps judge advocate.

In addition to deciding on witnesses and whether the charges merit the death penalty, Adm. MacDonald must determine whether he will level the charges against Mohammed contained in a 90-page “charge sheet” brought by military prosecutors.

At some point, the defense will have 60 days to file pretrial motions, which could take months to conclude. Attorneys likely will seek prosecution evidence and ask that Mohammed’s statements be ruled inadmissible at trial.

Mohammed was one of three high-value al Qaeda captives waterboarded by the CIA to obtain information on the group’s structure, financing and planned attacks.

Mr. Stimson said a trial might not start until 2013.

In court appearances in 2008, Mohammed admitted to masterminding the 9/11 attacks and asked the military judge to end motions in the case and let him plead guilty.

The charge sheet states, in part: “In August 1996, [Osama] bin Laden (al Qaeda’s ‘emir’ or leader) issued a public ‘Declaration of Jihad Against the Americans,’ in which he called for the murder of U.S. military personnel serving on the Arabian Peninsula. In 1996, Khalid [Shaikh] Mohammed met with [Osama] bin Laden in Afghanistan and discussed the operational concept of hijacking commercial airliners and crashing them into buildings in the United States and elsewhere. This plan was ultimately approved by [Osama] bin Laden.”

The charges against Mohammed and the other four co-conspirators include murder, hijacking and terrorism.

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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