Pentagon won’t slow 9/11 death penalty filings

Miami HeraldFebruary 3, 2012 

A senior Pentagon official on Friday refused to delay a pre-arraignment phase in the prosecution of five Guantánamo captives accused of conspiring in the Sept. 11 attacks.

Defense lawyers had asked to delay at least until this summer the process of filing memorandum on why the 9/11 trial should not go forward as a capital case.

They cited an ongoing dispute over the prison camps handling of privileged attorney-client mail, now being addressed in several courts, as well as delays by some defense lawyers in meeting with their alleged terrorist clients.

But the Pentagon official, retired Vice Adm. Bruce MacDonald, wrote 9/11 defense lawyers on Friday that Monday was still the deadline to argue in writing why life imprisonment — not military execution — should be the maximum possible penalty in the future tribunals of confessed 9/11 mastermind Khalid Sheik Mohammed and four other alleged conspirators.

Under that timetable, the Sept. 11 accused could be brought before a judge for arraignment at Guantánamo’s Camp Justice as early as March.

In the case of Ramzi bin al Shibh, who allegedly put together the German hijackers’ cell, his military lawyer has argued the Yemeni was likely not mentally fit to stand trial because Guantánamo medical staff had him on psychotropic drugs. His civilian lawyer, Buffalo attorney James P. Harrington, said he had no time to make any form of a “mitigation argument” before Monday’s deadline.

MacDonald approved Harrington’s appointment in July. But U.S. intelligence agencies didn’t grant him permission to meet the former CIA captive until December.

“I only met my client two weeks ago,” Harrington told The Miami Herald. “I just got a security clearance; there is no way we can do it.”

MacDonald made clear in his rejection of the pleas for delay that the law does not require him to consider defense lawyers’ arguments against military execution as the ultimate penalty in a Guantánamo military commission case.

“Considering the seriousness of the charges and the potential penalty, I concluded it was appropriate to do so in this case, but only if the defense could submit such matters in a timely manner,” he wrote Navy Cmdr. Walter Ruiz, defending Saudi captive Mustafa al Hawsawi. “You were given more than adequate time in which to prepare matters in mitigation for my consideration.”

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