THE trial of Khalid Sheikh Mohammed has been thrown into turmoil by a legal dispute that could hand the alleged mastermind of the September 11 attacks and his alleged co-conspirators strong grounds for appeal.
The US defence department is at loggerheads with the chief prosecutor at Guantanamo Bay over what the charges should be. The five men, whose pretrial hearings reconvene at the naval base next week, face eight different charges.
However, Brig Gen Mark Martins, the chief prosecutor, said the charge of conspiracy should be dropped because it was no longer "legally viable" following a court ruling that conspiracy – a charge that seeks to punish suspects for association with al-Qa'ida – was not a recognised war crime under international law. This meant it could not legitimately be brought before a war-crimes tribunal such as Guantanamo.
The ruling by an appeals court in Washington DC overturned the conviction against Osama bin Laden's driver, Salim Hamdan, and has undermined the conviction of Ali Hamza al-Bahlul, who made al-Qa'ida propaganda films.
Gen Martins said retaining the conspiracy charges against the September 11 suspects could leave the prosecution open to "legal challenge" and cause "uncertainty and delay".
However, Guantanamo Bay's "convening authority" – a branch of the Pentagon – said it would be "premature" to drop the conspiracy charges, hoping that the Supreme Court might reinstate their legality.
Richard Kammen, the lead counsel for Abd al-Rahim al-Nashiri, who was convicted in Yemen over the bombing of USS Cole but is also facing conspiracy charges at Guantanamo, said the government had seriously undermined Gen Martins's position as chief prosecutor. "The sub-context of this is, 'Who's in charge?'" said Mr Kammen.
He added that preserving the conspiracy charges could open the door to an appeal against all the charges being faced by the September 11 co-conspirators and al-Nashiri.
"If one of the main charges was conspiracy, and that was reversed, you would expect the appellate court to recognise that so impacted the rest of the trial that any other conviction would have to be reversed as well," he said. Gen Martins has already indicated that he plans to press ahead with his request by petitioning the military judge in the September 11 trial to strike out conspiracy as a separate charge.
That would present the judge, Col James Pohl, with the unenviable choice of either denying the requests of both defence and prosecution lawyers, or overruling his court's own convening authority.
Col Morris Davis, a former Guantanamo chief prosecutor who resigned in 2007 in protest at the Pentagon meddling in the tribunals, said the dispute between two major government departments undermined the credibility of the tribunals. (© Daily Telegraph, London)