U.S. Lawyers Divided over Terrorism Cases ; If Charges Are Dropped, Fewer Detainees Could Receive Tribunal Trials

By Savage, Charlie | International Herald Tribune, January 9, 2013 | Go to article overview

U.S. Lawyers Divided over Terrorism Cases ; If Charges Are Dropped, Fewer Detainees Could Receive Tribunal Trials


Savage, Charlie, International Herald Tribune


The Obama administration legal team is divided over whether to drop two terrorism cases, a decision that could significantly reduce the number of other prisoners who can receive tribunal trials.

The Obama administration legal team is divided over whether to drop two terrorism cases originally prosecuted in a military commission at Guantanamo Bay, Cuba. The resolution of the dispute could potentially bring a sharp reduction in the number of other prisoners who can receive tribunal trials.

In 2008, the two defendants were found guilty by a tribunal on charges -- including "material support for terrorism" -- that the Justice Department concedes were not recognized international war crimes at the time of their actions. In October, an appeals court rejected the government's argument that such charges were valid in U.S. law and vacated the "material support" verdict against one of the men, a former driver for Osama bin Laden.

U.S. officials are now wrestling with whether to abandon the guilty verdict against the other detainee, a Qaeda facilitator and maker of propaganda videos. He was convicted of both "material support" and "conspiracy," another charge the Justice Department has agreed is not part of the international laws of war, and his case is pending before a different panel of the same appeals court.

Terminating that case without a further fight, however, would mean giving up on charging other detainees with those offenses. It would also require prosecutors to drop a similar charge in the system's centerpiece case, the coming trial of Khalid Shaikh Mohammed and four others accused as accomplices in the Sept. 11, 2001, terrorist attacks. More direct charges, like attacking civilians and hijacking, would remain against the Sept. 11 defendants.

Robert M. Chesney, a law professor at University of Texas at Austin who specializes in the law of war, said the most important part of the debate involved cases where the evidence shows a person joined or supported Al Qaeda but was not linked to a particular attack. The dispute brings to a head a long-building controversy over the ability of military commissions to match civilian courts on this issue, he said.

"In the civilian court system, we have powerful tools for charging people in preventative circumstances who are not directly linked to an attack, and they are the charges of conspiracy and material support," Mr. Chesney said. "The military commissions system is supposed to be a still more robust terrorism prosecution system, but ironically there has always been a question about whether it can legitimately charge those two key crimes."

The push to terminate the two cases has been led by Brig. Gen. Mark S. Martins, the chief military commission prosecutor, officials said. He is said to have argued that even though giving up on the two cases would mean narrowing the scope of the tribunal system, it would put the system on firmer long-term footing and avoid making losing arguments and damaging its legitimacy as his office focuses on convicting the defendants in the 2001 attacks.

An administration spokesman declined to comment on the matter. But officials who spoke on the condition of anonymity because they were not authorized to discuss internal deliberations said General Martins's position had been backed by the acting general counsel of the Pentagon, Robert S. Taylor, and the top lawyer at the State Department, Harold Koh.

Justice Department litigators, however, have been loath to give up without a further fight, especially since both charges were blessed by Congress in 2006 and 2009 laws. …

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