
I had speculated in a previous post written just over a month ago - What did Abu Zubaydah know and when did he know it? - that Kahlid Sheik Mohammed was never going to be brought to trial, not because he isn't responsible for 9/11 attacks, but because he had been tortured; probably waterboarded.
Well according to an article in today's NYT I was wrong about one thing and right about others.
I was wrong that Khalid Sheik Mohammed would never be brought to trial, because as it turns out it looks like there is a very good possibility that he will be. Tried, that is. Though not in a regular trial like his nephew Ramzi Youseff but through the specially and specifically designed Millitary Commission system set up by the U.S. Government down in Guantanamo Bay.
(Just to recap - much of what I have already written in that previous post. The Military Commissions had been declared illegal under American law by the United States Supreme Court in a June 29, 2006 decision known as Hamdan v. Rumsfeld; illegal as they violated the Geneva Conventions, which is American Law. And so as this ruling "presented the Bush Administration with the risk of criminal liability for war crimes" under the American War Crimes Act - a 1996 law which "criminalized breaches of the Geneva Conventions" - the U.S. congress passed and adopted the Military Commissions Act. I'll save going into the specifics of this piece of legislation for a future post - mental note - and for now just state that this legislation has the duel purpose of allowing the trial of KSM to go forward under circumstances that the American government deems appropriate to his status as an enemy combatant, well at the same time retroactively protecting Bush, members of his Administration and anyone involved in the "interrogation of KSM from charges of war crimes.)
From that article - 6 at Guantanamo Said to Face Trial in 9/11 Case:
Military prosecutors are in the final phases of preparing the first sweeping case against suspected conspirators in the plot that led to the deaths of nearly 3,000 Americans on Sept. 11, 2001, and drew the United States into war, people who have been briefed on the case said.
The charges, to be filed in the military commission system at Guantánamo Bay, Cuba, would involve as many as six detainees held at the detention camp, including Khalid Shaikh Mohammed, the former senior aide to Osama bin Laden, who has said he was the principal planner of the plot.
The case could begin to fulfill a longtime goal of the Bush administration: establishing culpability for the terrorist attacks of 2001. It could also help the administration make its case that some detainees at Guantánamo, where 275 men remain, would pose a threat if they are not held at Guantánamo or elsewhere. Officials have long said that a half-dozen men held at Guantánamo played essential roles in the plot directed by Mr. Mohammed, from would-be hijackers to financiers.
But the case would also bring new scrutiny to the military commission system, which has a troubled history and has been criticized as a system designed to win convictions but that does not provide the legal protections of American civilian courts.
War-crimes charges against the men would almost certainly place the prosecutors in a battle over the treatment of inmates because at least two detainees tied to the 2001 terror attacks were subject to aggressive interrogation techniques that critics say amounted to torture.
One official who has been briefed on the case said the military prosecutors were considering seeking the death penalty for Mr. Mohammed, although no final decision appears to have been made. The official added that the military prosecutors had decided to focus on the Sept. 11 attacks in part as an effort to try to establish credibility for the military commission system before a new administration takes the White House next January.
“The thinking was 9/11 is the heart and soul of the whole thing. The thinking was: go for that,” the official said, speaking on the condition of anonymity because no one in the government was authorized to speak about the case. Even if the charges are released soon, it would be many months before a trial could be held, lawyers said.
But I was right about the treatment of KSM while in American custody being a possible potential bombshell in his defense:
Lawyers have said that two of those are men whose treatment in American hands would inevitably be a focus of defense lawyers in their cases.
One of them, Mr. Mohammed, known as KSM, was subject to the simulated-drowning technique known as waterboarding while in secret C.I.A. custody, Gen. Michael V. Hayden, the director of the Central Intelligence Agency, confirmed this week.
Indeed, Hayden did publicly confirm this week in testimony before the Senate that Khalid Sheik Mohmmed, Abu Zubayda and Abd al-Rashim al-Nashiri have all been waterboarded.
And I was right when I said that given the opportunity KSM would "probably confess". Unknown to me at the time I wrote that post, according to this article apparently he already has:
The American-educated Mr. Mohammed was described by the Sept. 11 commission as the “self-cast star, the superterrorist,” with plans for destruction on a vast scale. At a Pentagon hearing last year, he claimed responsibility for more than 30 terrorist attacks and plots.
He was explicit about his role in the 2001 attacks. “I was responsible for the 9/11 operation, from A to Z,” he said.
I should have known about this and I didn't. I missed the boat. But according to this CBS news article:
"I was responsible for the 9/11 operation from A to Z," said Khalid Sheikh Mohammed in a written statement that was read to a military tribunal at Guantanamo Bay, Cuba, according to a transcript released by the Pentagon on Wednesday.
The Khalid Sheikh Mohammed statement was read at the military hearing by a member of the U.S. military who is serving as the tribunal's Personal Representative for Mohammed, who the transcript says was present and was asked by the presiding officer about the authenticity of the statement.
"Khalid Sheikh Mohammed, the statement that was just read by the Personal Representative, were those your words?" asked the presiding officer, according to the transcript, which says Mohammed replied: "Yes."
Later in the hearing, the transcript says, Mohammed spoke directly to the court, in a final statement in which he describes himself as an enemy combatant, compared the fighters in the jihad against America to George Washington, and makes a plea on behalf of "many" Guantanamo Bay detainees he says were "unjustly arrested."
The secret proceeding last Saturday was closed to news media. The detainee spoke in English to a four-officer panel during a proceeding that lasted one hour and fifteen minutes.
"I'm not making myself hero when I said I was responsible for this or that," said. The brazen list of attacks, read by his Personal Representative, ranged from the 1993 World Trade Center truck bombing led by his nephew, Ramzi Yousef, who is serving a life sentence in the U.S., to the 2002 bombing of a nightclub in Bali, Indonesia, which killed more than 200 people.
Mohammed's confession also refers to many plots not previously made public: potential attacks on the Panama Canal, Big Ben in London, NATO headquarters in Brussels, an assassination of former President Jimmy Carter, and the destruction of an Indonesian oil company purportedly owned by former Secretary of State Henry Kissinger.
The confession also talks of plots against U.S. and U.K. targets in Turkey, nightclubs frequented by Americans and Brits in Thailand, U.S. embassies in Indonesia, Australia, and Japan, Israeli embassies in India and the Philippines, and the Israeli resort of Eilat.
Mohammed furthermore claims credit for training the nineteen Sept. 11 homicidal hijackers and would-be "shoe-bomber" Richard Reid, who was tackled by passengers on a 2001 Paris to Miami airline flight. He took responsibility for a 2002 attack that killed a pair of U.S. soldiers on a Kuwaiti island and a shoulder-fired missile that missed an Israeli passenger plane taking off from Mombassa, Kenya.
Mohammed's role as the lead actor in the Sep. 11 plot, which he proposed to al Qaeda leader Osama bin Laden in 1996 and bin Laden set in motion in 1999, has long been established. It was described in detail in the 9/11 Commission report published in 2004 and in a written substitution for his testimony in last year's trial of al Qaeda conspirator Zacarias Moussaoui, who Mohammed says was tapped only for a "second wave" of post-9/11 attacks.
Among his new revelations, Mohammed said potential targets for a second wave of attacks using planes as missiles were the Empire State Building in New York and the Plaza Bank Building in Seattle.
Should this case, or any of these cases, ever actually proceed, they will go right to the heart of the American justice system and everything that has taken place in the United States in the last seven years. Hell they should put it on TV. It could even eventually take place during the thickest part of the Presidential election season. And no doubt, as the above NYT article suggests, the Bush Administration would love to wrap this up before they leave office, thus legitimizing the Military Commissions.
The Center for Constitutional Rights has be in a constant fight for "due process" though out all of this, and I would certainly expect that will continue.
UPDATE:
Prosecuters will seek the Death Penalty.