Pentagon efforts to seek the death penalty for six Guantánamo detainees suspected of involvement in the 9/11 terror attacks will pose a substantial test for a makeshift military-tribunal system, which has yet to produce a single verdict at trial.
Defense Department officials announced on Monday the filing of formal charges against alleged 9/11 mastermind Khalid Sheikh Mohammed and five other Al Qaeda suspects. They were charged with involvement in planning or helping to coordinate the attacks that killed nearly 3,000 individuals at New York's World Trade Center, the Pentagon, and aboard a hijacked airliner that crashed in Pennsylvania.
In announcing the charges, Air Force Brig. Gen. Thomas Hartmann said the defendants participated in a "long-term, highly sophisticated organized plan by Al Qaeda to attack the United States of America."
All six were charged with conspiracy to commit war crimes, including murder, attacking civilians and civilian property, terrorism, and providing material support to terrorists.
Under Defense Department procedures, the charges will now be forwarded to the convening authority for military commissions, Susan Crawford, a former military appeals court judge, who must determine if there is probable cause to support the charges and whether to approve the potential punishment of death.
Among the defendants is Mohammad al-Qahtani, said to have been Al Qaeda's chosen 20th hijacker. Mr. Qahtani was reportedly unable to enter the US to participate in the attacks after an alert official questioned him at Orlando International Airport.
Also named in the charges was Ramzi bin al-Shibh, an alleged member of an Al Qaeda cell in Germany who was selected to participate in the 9/11 attacks but was unable to obtain a US visa to enter the country.
The Bush administration established the special military commission system at the terror prison camp at Guantánamo Bay, Cuba, in an effort to bypass many of the rigorous legal protections mandated for criminal defendants on trial in American courts.
The tribunal system has been under siege by legal challenges. The Supreme Court invalidated portions of the process in June 2006. Congress has twice passed legislation to bolster a version of the tribunal system favored by the Bush administration.
Despite significant legal activity at the highest levels of the judiciary, no terror suspect has yet stood trial at Guantánamo. Last year, after five years as a prisoner at Guantánamo, Australian David Hicks agreed to plead guilty to providing material support to terrorists. He served a nine-month prison sentence in Australia and was released in late December.
The move to charge those alleged to have been involved in the 9/11 attacks marks a shift in tactics by military prosecutors. They had initially sought to place a number of lower level Al Qaeda suspects – drivers and foot soldiers – on trial in an effort to work any kinks out of the system and demonstrate to the world that swift but fair justice could be meted out at Guantánamo.
But those cases bogged down in pretrial appeals in the military tribunals and federal courts.
The higher profile 9/11 cases – combined with potential death sentences – are expected to attract even more rigorous scrutiny through legal challenges and close examination by human rights advocates, analysts say.
The fact that these are to be capital trials will also require close examination of the quality of the government's evidence and the fairness of the commission process.
"It is an extraordinary set of rights we are providing the accused," said General Hartmann, legal adviser for the military commissions, in a press conference Monday.
He said the defendants would enjoy the right to remain silent, the right to be represented by legal counsel, the right to call witnesses and present their own evidence, the right to cross-examine witnesses, and the right to be present during the presentation of evidence.
If the case proceeds as a capital trial, the commission must be comprised of 12 members of the military who must vote unanimously for a death sentence.
"These rights are guaranteed to each defendant and are designed to ensure that each defendant receives a fair trial consistent with American standards of justice," Hartmann said. But he added that thorny issues of admissibility of evidence would be fought out and determined by a military judge during the trial.
Much of the evidence against the six men is considered classified information and would need to be declassified prior to being introduced in a public trial. In addition, some of the evidence was obtained through methods that critics say amounted to coercion and torture.
US officials have acknowledged that Mohammed was subjected to a technique known as waterboarding. It is one of an array of harsh interrogation tactics approved by the Bush administration to gather intelligence information from Al Qaeda suspects.
But it remains unclear whether information resulting from the use of waterboarding and other harsh tactics would be considered by a military judge to be reliable enough to survive challenges during a commission trial.
Special rules adopted for the Guantánamo military commissions permit the introduction of hearsay and coerced testimony if the presiding judge deems them trustworthy. The rules also permit the introduction of secret evidence that may not be disclosed to the defendant but only to the defendant's attorney. There is no speedy trial right. In addition the rules provide no right against compulsory self-incrimination.
These innovations will likely form the basis of potential landmark appeals to appeals courts in the US should commission trials result in guilty verdicts.
Hartmann told reporters that the commission trials would be open to the public, except in limited circumstances. "There will be no secret trial. Every piece of evidence ... every whiff of evidence ... will be reviewed by the accused and subject to cross-examination and challenge," he said.
But he added there may be limited times when special rules may be applied to protect against the disclosure of sensitive national security information.
He said: "I am advised that relatively little ... evidence will be classified."