Lawyers for a Pakistani man accused of wiring money used in the Sept. 11 attacks argued in a memo Friday that, because the alleged terrorist was accused of a lesser role in the terror attacks, he should not face the possibility of a death penalty.
Ammar al Baluchi, 34, is among five alleged co-conspirators in the 9/11 mass murder awaiting trial at the U.S. Navy base at Guantánamo Bay, Cuba. Baluchi, sometimes called Ali Abdul Aziz Ali, is accused of wiring money to the Sept. 11 hijackers in 2000 and then helping some transit through Dubai in 2001. He is also the nephew of confessed mastermind Khalid Sheik Mohammed, the lead defendant in the war crimes case.
But Baluchi’s attorney, James Connell, noted that just this week the Pentagon charged a different alleged money courier in another al Qaida case with a maximum punishment of life in prison, if he’s convicted. That man, Majid Khan, 31, also Pakistani, is accused of plotting to kill Pakistani President Pervez Musharraf at the behest of Mohammed and serving as a cash courier to an al Qaida affiliate ahead of a terror attack on the J.W. Marriott in Indonesia that killed 11 people in August 2003.
“Under the constitutional and military standards prevailing in a federal court or court-martial, only those who intentionally kill, or are major participants in the act of killing, are eligible for the death penalty,” Connell wrote, characterizing a memo he sent to a senior Pentagon official who oversees Guantánamo’s war court, the Military Commissions.
The memo itself was under seal Friday. But Connell said he argued that the Khan case underscored his argument that the war court “should follow the standards of fairness which apply in a federal court.” And they “do not authorize the death penalty as a punishment for logistical co-conspirators, as opposed to planners, commonly called ‘masterminds,’ or direct participants, commonly called ‘triggermen.’ ”
At the Pentagon, retired Vice Adm. Bruce MacDonald, as senior official overseeing the war court, is currently deciding whether Mohammed and all four alleged co-conspirators of the 9/11 attacks should face a capital murder trial by military tribunal. Were MacDonald to rule that some among the five would face possible military execution and others life imprisonment, a Pentagon lawyer advised, the noncapital cases would be split off.
Once MacDonald sorts that portion out, a judge would be assigned to the case to hear motions from defense lawyers and prosecutors.
Separately Friday, the chief Guantánamo war court judge set Feb. 29 for Khan’s arraignment at Camp Justice.
It will be the first time the public will get to see Khan, a 1999 suburban Baltimore high school graduate, since the CIA spirited him from his native Pakistan into a secret post-9/11 detention and interrogation network. Khan has been at Guantánamo since 2006, but was first presented with charges Monday.
Army Col. James Pohl, the chief Guantánamo judge, assigned himself to the case.
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