By Jane Sutton
MIAMI, Jan 18 (Reuters) - The Pentagon appointee overseeing
the Guantanamo war crimes court refused on Friday to drop
conspiracy charges against five accused plotters of the Sept. 11
attacks despite the chief prosecutor's concerns that the charge
might not withstand appeals.
The decision announced by the Pentagon means the alleged
mastermind of the hijacked plane attacks, Khalid Sheikh
Mohammed, and four other captives could be tried on a charge
that the prosecutor acknowledged might not have been recognized
as a war crime when the attacks occurred in 2001.
In addition to the conspiracy charge, the defendants face
murder and other charges that could lead to their execution if
they are convicted in the tribunal at the Guantanamo Bay U.S.
Naval Base in Cuba.
The chief prosecutor, Brigadier General Mark Martins, asked
the Pentagon appointee, Retired Admiral Bruce MacDonald, to
dismiss the conspiracy count last week. The prosecutor said
doing so would remove uncertainty that could taint or delay the
case.
But MacDonald said on Friday that "dismissal at this time
would be premature" because an appellate decision on the
validity of the conspiracy charge was still pending in a
Washington court.
Defense lawyers have argued for years that conspiracy was
not recognized as a war crime in 2001, when al Qaeda operatives
slammed hijacked passenger jets into the World Trade Center in
New York, the Pentagon and a field in Pennsylvania.
The defendants are being tried under a law passed by the
U.S. Congress in 2006 and revised in 2009, which designated
conspiracy and providing material support for terrorism as war
crimes.
CONVICTION STRUCK DOWN
In October, a U.S. appeals court in Washington struck down
the material support conviction of deceased al Qaeda leader
Osama bin Laden's driver, former Guantanamo prisoner Salim
Hamdan, on grounds that the charge could not be applied
retroactively to events that occurred in 2001 and earlier.
A pending appeal on behalf of another Guantanamo convict, al
Qaeda videographer Ali Hamza al Bahlul, was expected to bring a
similar ruling on the conspiracy charge.
But the Obama administration said last week that it would
fight in court to uphold Bahlul's conspiracy conviction and
MacDonald said it would be premature to drop the conspiracy
charge in the 9/11 case before the appeals court ruled.
Part of MacDonald's role as "convening authority" for the
Guantanamo tribunal is to decide what charges are referred for
trial.
Martins, the chief prosecutor, declined to comment on
Friday. A Pentagon spokesman, Lieutenant Colonel Todd
Breasseale, said the disagreement between MacDonald and the
prosecutor was "an example of the legal rigor" and debate that
is encouraged within the system.
James Connell, a defense lawyer for Mohammed's nephew,
defendant Ali Abdul-Aziz Ali, said it showed that MacDonald
lacked the neutrality his role requires and demonstrated the
unfairness of the tribunal established to try foreign captives
outside the regular U.S. courts.
"They have a stake in this outcome and they've decided that
they want these charges to go forward even though the chief
prosecutor thinks they're not legally viable," Connell said.
Defense lawyers also have asked the judge presiding over the
trial at Guantanamo to drop the conspiracy charge and
prosecutors did not object. That request was pending.
In addition to the conspiracy charge, the defendants face
seven other charges, including terrorism, hijacking aircraft and
murdering 2,976 people.
Mohammed and his nephew Ali are Pakistani citizens. The
other defendants are Yemeni citizens Walid bin Attash and Ramzi
Binalshibh, and Saudi prisoner Mustafa al Hawsawi.
They were captured in 2002 and 2003 and held in secret CIA
prisons before being sent to a detention camp at Guantanamo in
2006.
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