GUANTANAMO BAY NAVAL BASE, Cuba -- Expect only seven more captives to be charged at the war court, the chief Pentagon prosecutor said Sunday, offering a much reduced vision of the scope of the special court after a federal court setback.
Six prisoners await death-penalty trials — Khalid Sheik Mohammed, 48, and four other alleged plotters accused of killing 2,976 people in the Sept. 11, 2001, attacks plus a Saudi man accused of engineering al-Qaida’s USS Cole bombing that killed 17 U.S. sailors. Seven others have already been convicted of al-Qaida foot-soldier crimes.
But, recently, a federal court overturned the 2008 conviction of Osama bin Laden’s driver, concluding that providing material support for terror was not a viable war crime for many held captive at Guantánamo.
Based on that decision, the total number of prisoners “who can be realistically prosecuted” number around 20, chief prosecutor Army Brig. Gen. Mark Martins told reporters on the eve of resumption of pre-trial hearings in the Sept. 11 case.
Now, with 166 men left here, that means about 150 will never be charged with a crime.
The number reflects a much smaller use of the military commissions authorized by George W. Bush in November 2001. Of the 779 captives the United States held prisoner at Guantánamo since January 2002, only three were convicted in the Bush years.
In 2010, President Barack Obama’s Guantánamo Review Task Force had recommended that 36 detainees be prosecuted by military tribunal and that the five alleged Sept. 11 conspirators face civilian trial in New York City. But Congress thwarted the plan.
Two of the future prosecutions have already been disclosed, both non-capital, leaving just five more captive prosecutions to identify.
One is Ahmad al Darbi, 48, a Saudi man accused of a 2002 terror attack on a French oil tanker in the Gulf of Aden, and other al-Qaida-connected crimes. Martins swore charges in August but he has yet to be brought to court.
Another is Abd al-Hadi al-Iraqi, 52, an Iraqi captive who got to Guantánamo in April 2007 from a secret CIA site.
Martins released his charge sheet just last week. It alleges that Hadi, 48, ran al-Qaida’s army in Afghanistan and Pakistan from 2002-2004, with troops waging an insurgent war on invading U.S. and allied troops in a take-no-prisoner doctrine that did not distinguish between civilians, medical workers and foreign troops.
“He’s always maintained his innocence and continues to maintain his innocence,” said Hadi’s Pentagon-appointed defense lawyer Army Lt. Col. Chris Callen.
Guantánamo’s tribunal is a hybrid of traditional federal and military courts, and is still a work in progress. This week’s hearings for the men accused of plotting the 9/11 attacks is still in the pretrial phase, with defense lawyers arguing whether the case was properly prepared for prosecution here rather than in New York City as Attorney General Eric Holder had planned.
Six victims of the 9/11 attacks are here to watch this week’s proceedings and, typical of those chosen by lottery to visit Guantánamo, they disagreed on where the trial should be held. They include two firefighters who were injured that day, a son, a sister and a widow of three men killed in New York’s World Trade Center.
“It was a war crime,” said Linda Gay, 54, of Tewksbury, Mass., whose Raytheon executive husband Peter was killed aboard Flight 11. “I do not want them in New York” where they could get a “worldwide” audience through speechmaking at their trial. She advocated a Guantánamo trial. “Do the right thing and get it done.”
New Yorker Rita Lasar, 81, disagreed. Her brother Abraham Zelmanowitz was killed “in a heinous crime,” the collapse of the North Tower because he refused to leave behind a disabled office mate. Of the alleged plotters, she said: “These five men in spite of who they are deserve the fairest, most transparent and honest trial” on U.S. soil.
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