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Convening authority at Guantánamo war crimes court blocks prosecutor's request to remove conspiracy from list of charges
The Pentagon and prosecutors at Guantánamo Bay are at loggerheads over charges against the accused mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and his alleged accomplices as a new round of hearings begins before a military court on Monday.
The Defense Department official overseeing the war crimes court, retired Vice Admiral Bruce MacDonald, on Friday sought to block a move by the chief prosecutor, Brigadier General Mark Martins, to drop conspiracy charges against Mohammed and his four co-accused following US appeals court rulings in other cases that conspiracy is not an offence under international law.
On Wednesday, Martins submitted a request to the military court to remove the charge against the five accused on the grounds that it is no longer "legally viable", would open proceedings to legal challenge and create "uncertainty and delay".
But MacDonald, in a move lawyers said severely undermined the authority of the prosecutor, is attempting to insist that the conspiracy charge remain for now because the appeals court ruling may yet be overturned by the US supreme court. MacDonald is the "convening authority", a position only found in military courts, with overall responsibility for the prosecutions.
That left the status of the conspiracy charges against Mohammed and his co-accused uncertain, and the possibility that the military judge, Colonel James Pohl, will be forced to decide the issue this week.
The accused also face numerous other charges, including 2,976 counts of murder, which carry the death penalty.
The future of the trial was clouded by a US appeals court ruling on Friday overturning the war crimes convictions of a Yemini, Ali Hamza al Bahlul, who served as a propagandist for al-Qaida, on the grounds that the charges against him – conspiracy, material support for terrorism and soliciting murder – were not recognised as offences under the international laws of war at the time the acts were committed.
Al Bahlul recorded the final videos of some of the hijackers who flew the planes into the World Trade Center towers, and made recruiting material for al-Qaida.
The same court in October overturned the conviction of Osama Bin Laden's driver on similar grounds.
The dispute over the charges is the latest embarrassment to a court whose credibility has already been badly dented over its handling of the torture of Mohammed, who was waterboarded 183 times and a poor track record on convictions. Defence lawyers say that of the seven trials the court has completed, appeal court rulings have struck down
verdicts in five of them.
But, legal analysts say, maintaining the conspiracy charges against Mohammed and his co-accused is important to MacDonald because of its import in other cases.
The five face a raft of other charges and the conspiracy charge is not crucial to their conviction.
But for others held at Guantánamo, conspiracy is likely to be the major charge against them because of a evidence of direct participation in 9/11.