Guantánamo war court prosecutors filed fresh death penalty charges against five men for allegedly plotting the Sept. 11, 2001 attacks, accusing the former CIA captives of murder, conspiracy and terrorism, the Pentagon said Tuesday.
Relatives of the nearly 3,000 people killed in the attacks were notified of the pending charges on Monday, Memorial Day, said Army Lt. Col. Tanya Bradsher, a Pentagon spokeswoman.
The new charge sheet reflected a political setback for the Obama administration, which not only came in to office pledging to close the prison camps in southeast Cuba that today hold 171 foreign men as war prisoners but also decided after study to have a civilian judge and jury hear the 9/11 trial in New York.
Politicians and some 9/11 families protested the scheme, fearing both that a trial would make Manhattan an even great al Qaeda target and that the accused may draw on greater due process in a federal court.
“The charges allege that the five accused were responsible for the planning and execution of the attacks on New York, Washington D.C. and Shanksville, PA that occurred on Sept. 11, 2001,’’ a Defense Department announcement said. “Those attacks resulted in the deaths of nearly 3,000 people.”
The five men charged were the same as those charged at a military commission during the Bush administration, a trial the White House ordered frozen to give a Task Force time to study the case files of each Guantánamo captive.
All five men spent years in CIA custody at a so-called black site, overseas prisons at still-secret locations, where they were interrogated on al Qaeda terror plots until President George W. Bush ordered their transfer to U.S. military custody in September 2006 to ready them for military trials.
At the Pentagon, spokesman David Oten would not say who presented the charges to the men, or how but said Tuesday afternoon, “They were read the charges sometime today.”
In the past, Defense officials have said it was the duty of the staff attorney’s office at the prison camp to present the charges -- not prosecutors -- and in a language other than English for those captives who require translation to understand the nature of the document they were being read. The men are held in a secret facility at Guantánamo that segregates former CIA prisoners from the other military held captives in other camps.
The Pentagon announcement made clear that no trial was imminent. First, the military-appointed lawyers for the accused must determine if the men will accept their services, or seek to serve as their own lawyers, as three did in the earlier aborted effort to bring them to trial.
Under the new Obama-era reformed tribunals, death-penalty accused are also entitled to government paid “learned counsel,” civilian defense lawyers with expertise in capitol cases that military defense lawyers largely lack. Once chosen, and funded by a senior Pentagon official, the defense teams first task would be to argue if and why a death penalty prosecution would be inappropriate in this case.
That timetable makes an arraignment unlikely this summer but potentially possible around the 10th anniversary of the worst terror attacks on U.S. soil.
The Pentagon also has pledged an effort at greater transparency for the trials, which are being held at the remote base in a makeshift, expeditionary court compound called Camp Justice.
Still, Defense Department officials did not initially release the 90-page charge sheet -- something that is routine practice in any civilian court announcement of charges -- and withheld the document until later in the day.
It was so lengthy, in part, because the document contained the names of all 2976 people killed in the aircraft and buildings that were struck in the coordinated Sept. 11, 2001 hijackings.
It was signed by two military officers -- a Chief Warrant Officer, Anthony Graziano, of the military’s Criminal Investigation Task Force and Navy Cmdr Darlene Simmons, a lawyer with the Office of Military Commissions.
Critics of the war court that the Bush administration created and the Obama administration reformed were likewise critical of the decision to return the death penalty case to a Guantanamo court.
Attorney C. Dixon Osborn of Human Rights First, a legal advocacy group, said the White House “buckled to political pressure” to try the five men “before constitutionally questionable tribunals that have virtually no experience adjudicating terrorism trials.”
Only one other case is currently pending at Camp Justice, and it is also a death penalty case. Pentagon prosecutors are awaiting approval to go forward with the trial of Abd al Rahim al Nashiri, a Saudi accused of orchestrating al Qaeda’s October 2000 suicide bombing of the USS Cole off Aden Yemen that killed 17 American sailors.
It is not known how any Guantánamo death penalty would be carried out. The Military Commission manual leaves that decision up to the Secretary of Defense.