Military Commission Hearings to Be Fair, Transparent, Trial Advisor Vows

By Gerry J. Gilmore
American Forces Press Service

June 5, 2008 - Five accused terrorists slated for arraignment today for their alleged role in the Sept. 11, 2001, attacks on America will get a fair trial, a senior military lawyer and judge vowed here yesterday. "The Department of Defense is reminding all of us that fair, just and transparent hearings in these cases is the No. 1 legal services priority of the entire Department of Defense," said Air Force Brig. Gen. Thomas W. Hartmann, the legal advisor to the convening authority in the Department of Defense Office of Military Commissions.

The Military Commissions Act of 2006 establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses that can be tried by military commission, according to a military commissions fact sheet.

The judge, Marine Col. Ralph H. Kohlmann, will inform Khalid Sheikh Mohammand, Walid Muhammad Salih Mubarak bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al-Hawsawi of the nature of the charges filed against them, which include terrorism, conspiracy, hijacking and murder. The judge also will instruct the accused of their counsel rights and ask whether they plead guilty or not guilty to the charges.

Khalid Sheikh Mohammand is the alleged mastermind of the Sept. 11 attacks, believed to have proposed the operational concept to al-Qaida leader Osama bin Laden as early as 1996. He is accused of obtaining approval and funding from bin Laden for the attacks, overseeing the entire operation and training the hijackers in all aspects of the operation in Afghanistan and Pakistan.

Walid Muhammad Salih Mubarak bin Attash allegedly administered an al-Qaida training camp in Logar, Afghanistan, where two of the Sept. 11 hijackers were trained.

Ramzi bin al-Shibh allegedly lived with the Hamburg, Germany, al-Qaida cell where three of the Sept. 11 hijackers resided. It is alleged that Shibh was originally selected by bin Laden to be one of the Sept. 11 hijackers, but he was unable to obtain a U.S. visa, and therefore couldn't enter the United States to participate in the attacks. He allegedly assisted in finding flight schools for the hijackers in the United States and engaged in various financial transactions in support of the attacks.

Ali Abdul Aziz Ali allegedly sent about $120,000 to the hijackers for their expenses and flight training tuition. He also allegedly helped nine hijackers travel to the United States.

Mustafa Ahmed Adam al-Hawsawi allegedly assisted and prepared the hijackers with money, Western clothing, traveler's checks and credit cards. He also allegedly facilitated the transfer of thousands of dollars between the accounts of the hijackers and himself on Sept. 11, 2001.

The five accused terrorists will be tried jointly, Hartmann noted. They were served nine referred charges, including two specifications of one of the charges, on May 21.

Every effort is being made to ensure all defendants receive everything reasonably possible to aid in the preparation of their cases, Hartmann said, including numerous available military or civilian defense counsels appointed by the court. Simultaneous language interpretation capability, he added, will be available in the new, modern courtroom that's been constructed at a cost of $4 million.

Regarding the possible introduction of evidence during trial that's classified in nature, Hartmann noted that such information could be introduced during a military commission hearing, but it would be safeguarded from public disclosure because of national security considerations.

The public will not see classified information introduced during military commissions because of national security concerns, Hartmann explained.

However, "we're bending over backwards in every way possible to make sure that these trials are fair, and one of those fundamental protections is that the accused gets to see every piece of evidence and confront every piece of evidence, ... even if it is classified," Hartmann emphasized.

Yet, some sensitive evidence might be declassified, if possible without harming national security, to facilitate fairness and transparency of the court proceedings, Hartmann said.

All defendants in military commission hearings have the right to cross-examine prosecution witnesses, call their own witnesses, and challenge any evidence that's introduced in court, Hartmann said.

"So, it's very important that we provide those [defendant] rights and that we explain those rights to the American public and to the international public," Hartmann said.

President Bush repeatedly has said the United States doesn't practice torture, Hartmann said. Accordingly, he said, any evidence or information that's believed to have been obtained through torture would be inadmissible in a military commission court.

If, after trial, a defendant is found not guilty, then he would be returned to the Guantanamo Bay facility, where the need for further detention likely would be examined by a review board, Hartmann said.

Other detainees not charged with crimes also are being held at Guantanamo so that they are not a danger to U.S. troops, Hartmann explained. He likened the situation to that during World War Two when 400,000 enemy prisoners of war were held in stateside detention camps.

Within the past few weeks, Deputy Defense Secretary Gordon R. England declared that fair and impartial military commission hearings for the accused constitutes the No. 1 priority for the Defense Department's legal system, Hartmann said.

Scores of members of the press, he noted, have traveled to Guantanamo to witness the fairness and transparency of the arraignment proceedings.

All of the accused in military commission cases are presumed innocent until they are proven guilty beyond a reasonable doubt, Hartmann said.

"The prosecution and the defense will duke it out in the courtroom, and the judge will make a determination," Hartmann said.