WASHINGTON: The Pentagon appointee overseeing the Guantanamo war crimes court refused on Friday to drop conspiracy charges against five accused plotters of the 9/11 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 recognised 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 US Naval Base in Cuba.
The chief prosecutor, Brigadier General Mark Martins, asked the Pentagon appointee, Admiral (retd) 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 Mr 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.
Defence lawyers have argued for years that conspiracy was not recognised 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 US 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 US 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 it would fight in court to uphold Bahlul’s conspiracy conviction and Mr MacDonald said it would be premature to drop the conspiracy charge in the 9/11 case before the appeals court ruled.
Part of Mr MacDonald’s role as “convening authority” for the Guantanamo tribunal is to decide what charges are referred for trial.
Brig-Gen Martins, the chief prosecutor, declined to comment. A Pentagon spokesman, Lt-Col Todd Breasseale, said the disagreement between Mr MacDonald and the prosecutor was “an example of the legal rigour” and debate that is encouraged within the system.
James Connell, a defence lawyer for Mohammed’s nephew, defendant Ali Abdul-Aziz Ali, said it showed that Mr MacDonald lacked the neutrality his role required and demonstrated the unfairness of the tribunal established to try foreign captives outside the regular US courts.