Prosecutors in Sept. 11 Case Want Judge to Admit Earlier 'Incendiary' Confession

Guantanamo Naval Base, Cuba – Prosecutors on Monday said they want the judge to admit as evidence a “graphic and incendiary” typed “confession” the five accused 9/11 plotters made in 2009, during the first attempt to prosecute the defendants by a military tribunal at Guantanamo Bay.

Ed Ryan, a federal prosecutor on the team led by Army Brig. Gen. Mark Martins, argued that the March 2009 court filing – titled “The Islamic Response to the Government’s Nine Allegations” – was a valid confession coming directly from the defendants, not in any way induced by government interrogators, and should be entered as evidence in the case.

“They are begging to confess,” Ryan said when characterizing the document. He said in the filing the five defendants “celebrated” their guilt.

The government is seeking to defeat a motion to suppress “The Islamic Response” filed by the defense team for Mustafa al Hawsawi, who along with the other four defendants faces the death penalty for their alleged roles in the Sept. 11 plot. Next month marks the 16th anniversary of the attacks.

Al Hawsawi's lead lawyer, Walter Ruiz, argued to the judge, Army Col. James Pohl, that the document was unfairly prejudicial. The document is available in filings on the military commissions website (www.mc.mil).Ruiz also was critical of the prosecution’s distribution of the document to victim family members, including those who may end up being witnesses in the case. He wants Pohl to issue an order preventing such distribution.

Ruiz did not finish oral arguments on Monday and instead will conclude them on Thursday.

The five defendants were initially charged in 2008 under the Bush-era Military Commissions Act of 2006. At the time “The Islamic Response” was filed, three of the defendants – Khalid Sheikh Mohammed, Walid bin Attash and Ammar al Baluchi – were representing themselves and had stated a desire to plead guilty. The remaining two – Ramzi bin al Shibh and al Hawsawi – expressed a similar intent but still had lawyers because the judge had questions about their competency.

That year, the Obama administration abandoned the military case in favor of a federal court prosecution in lower Manhattan. When those plans fell through under political pressure in 2011, the defendants were charged again at Guantanamo Bay – this time under the Military Commissions Act of 2009, which amended the commissions system.

Since their arraignment in May 2012, the five defendants have generally worked in concert with their attorneys and not expressed a desire to plead guilty. (For the past two years, bin Attash has been an exception, regularly informing the judge that he cannot work effectively with the lawyers on his team, led by Cheryl Bormann; however, he wants new lawyers to defend him.) Under the 2009 law, each defendant charged with capital offenses receives a “learned counsel” experienced in death-penalty cases along with military defense counsel.

The six-page Islamic Response does not have written signatures. Typed at the bottom is “Signed: The 9/11 Shura Council,” with the names of the five defendants typed beneath. The document reads, in part:

“Your intelligence apparatus, with all its abilities, human and logistical, had failed to discover our military attack plans before the blessed 11 September operation. They were unable to foil our attack.”

Now, however, Ruiz’s team argued in its written motion that the document could not have been a pro se filing by his client because al Hawsawi had legal representation at the time. The team contends that the document “has no legal effect as he could not file pleadings as a pro se accused," and that al Hawsawi had disavowed the document after learning of its filing.

The four other defense teams did not join the al Hawsawi motion, though they will be free to make challenges to the document’s admission later.

Lawyers for the accused mastermind Mohammed indicated in a motion explaining their “non-joinder” that they will focus on the torture suffered by their client at CIA black sites before arriving at Guantanamo Bay, which they claim taints all defendant statements.

The lawyers, led by David Nevin of Nevin Benjamin in Boise, Idaho, explained that this argument “cannot yet fully be litigated” because they are still reviewing discovery – and waiting for additional information – on the controversial CIA program that exposed the defendants to so-called “enhanced interrogation techniques."

Gen. Martins told Pohl on Monday that the time-and labor-intensive process of providing this discovery to the defense teams was nearly completed. However, the defense teams will be entitled to file motions for additional discovery once they assess the discovery that has been provided.

Monday’s hearing marked the start of the 24th pretrial session in the case. A trial date is not yet set, though Pohl is expected to take up later in the week the government’s renewed motion to set a timeline for completing the pretrial phase and commencing the selection of military officers that will serve as the jury.