The American Civil Liberties Union, which for years has scorned Pentagon military commissions as "kangaroo courts,'' announced Friday that it will try to provide top civilian defense attorneys for alleged terrorists facing trial at Guantanamo Bay, Cuba — including the alleged mastermind of the Sept. 11, 2001, terrorist attacks.
Former Attorney General Janet Reno is among top lawyers who've endorsed the $8.5 million effort, which will help coordinate and defray the expenses of civilian defense attorneys working on the terrorism cases. Under the military commissions scheme, the Pentagon won't reimburse volunteer civilian attorneys for their expenses.
ACLU Executive Director Anthony Romero said a major thrust of the effort will be to defend Khalid Sheik Mohammed, who military officials say has confessed to masterminding the 9-11 attacks and several other terrorist acts, including the beheading in Pakistan of Wall Street Journal correspondent Daniel Pearl.
The ACLU chose to focus on Mohammed's defense, Romero said, because he appears to be "the government's top priority in the prosecution. And whether or not they are able to convict Khalid Sheik Mohammed under these rules may well determine the fate of the almost 300 other men who are detained at Guantanamo.''
Mohammed was held in secret CIA custody until September 2006, and the CIA has admitted subjecting him to waterboarding while he was being questioned. Waterboarding is simulated drowning and is considered torture by many rights advocates.
Mohammed's case "is likely to raise the most significant issues of torture, hearsay evidence and access to counsel,'' Romero said.
At the Pentagon, a war court spokesman said the Office of Military Commissions hadn't received details about the ACLU program.
But Air Force Capt. Andre Kok noted that the law governing the trials entitles each Guantanamo defendant to a military defense lawyer and that volunteer civilian attorneys can also participate, without government reimbursement.
"The system allows for that,'' said Kok. "There's a mechanism set in place for them to become part of that pool of qualified attorneys.''
Romero said 11 lawyers have agreed to defend Guantanamo detainees facing death penalty charges under the program, which the ACLU has dubbed "The John Adams Project'' after the second president of the United States, who as an attorney was subjected to ridicule for defending British soldiers accused of killing colonists in the 1770 Boston Massacre.
Because the prisoners have been cast by the White House as the most reviled enemies of America, the ACLU and the National Association of Criminal Defense Lawyers issued endorsements of the effort from high-profile lawyers, including one from Reno, who served as President Clinton's attorney general for both of his terms and is the longest-serving attorney general in U.S. history.
"This is the time to demonstrate to the world that the United States need not abandon its principles,'' said Reno, "even as it seeks to ensure the safety of its citizens.''
The program described Friday is the result of a stealthy collaboration between the ACLU, the National Association of Criminal Defense Lawyers and uniformed U.S. military lawyers.
On Feb. 11, the Pentagon prosecutor filed proposed death-penalty charges against Mohammed and five other men as alleged co-conspirators in the 9-11 attacks.
Since then Army Reserves Col. Steve David, who is the commissions' chief defense counsel, has been trying to build teams of military attorneys qualified to handle the complicated death penalty cases from the mostly inexperienced military judge advocates general assigned to his office.
David, an Indiana judge in civilian life, has said that he wants to meet American Bar Association standards in the cases — meaning assigning 12 government lawyers, six investigators and six paralegals. At the same time, the defense JAGs have been attending ABA death-penalty training classes.
The military commissions' legal advisor, Brig. Gen. Thomas Hartmann, has said that the military commissions are not obliged to follow ABA standards.
Among those who've volunteered to defend the 9-11 conspirators are Idaho attorney David Nevin, whose previous cases include the successful defense of a Saudi charged with terrorism; New York attorney Joshua Dratel, who defended clients charged with the 1993 bombing of the World Trade Center prosecutions; and Denise LeBoeuf, a prominent New Orleans death penalty defense attorney.
Romero said a noted death-penalty lawyer has agreed to defend Mohammed before the military commission — if he's allowed to see Mohammed in private at the remote Guantanamo U.S. naval base and Mohammed agrees to accept his services.
Romero declined to name the attorney, but said that the lawyer had already applied for the high-level security clearance required to meet with Mohammed, who is held in seclusion at the base.
"The only way you can protect the system from being a complete sham is to make sure that they have a good defense,'' said Jennifer Daskal of Human Rights Watch, who also has been a commission observer. "And one way to do that is to have strong, zealous experienced lawyers.''
Romero said the ACLU decided to champion the defense effort in response to the recent acceleration of military commission prosecution efforts, which some have said are timed for the 2008 campaign season.
(Rosenberg reports for The Miami Herald.)
McClatchy Newspapers 2008