MARGARET WARNER: Six alleged plotters of the 9/11 attacks face trial by a military commission, which could sentence them to death. At a Pentagon briefing this morning, a top military lawyer summed up the case against the six men.
BRIG. GEN. THOMAS HARTMANN, Legal Adviser, U.S. Military Tribunal System: These charges allege a long-term, highly sophisticated, organized plan by al-Qaida to attack the United States of America.
MARGARET WARNER: The most prominent defendant, Khalid Sheikh Mohammed, the alleged mastermind of the attacks. The other defendants and the charges against them: Walid bin Attash, training two hijackers at a camp in Afghanistan; Ramzi bin al-Shibh, Ali Abdul al-Aziz, and Mustafa Ahmed al-Hawsawi, coordinating the hijackers’ money and training; and Mohammed al-Qahtani, the so-called 20th hijacker, who was barred entry to the U.S. a month before 9/11.
Brigadier General Thomas Hartmann, a legal adviser to the tribunal, said the defendants would have a fair trial, consistent with American standards of justice, with such rights as…
BRIG. GEN. THOMAS HARTMANN: … the right to remain silent and to have no inference drawn from it, no adverse inference drawn from it; the right to be represented by detailed military counsel, as well as civilian counsel of his own selection, at no expense to the government; the right to examine all evidence used against him by the prosecution…
MARGARET WARNER: Hartmann was asked if evidence gathered from Khalid Sheikh Mohammed through harsh interrogation techniques like waterboarding would be admissible against them.
BRIG. GEN. THOMAS HARTMANN: We will apply the rule of law. And evidence with regard to the admissibility of evidence will be determined there by the prosecution and the defense fighting it out and a military judge making that decision.
MARGARET WARNER: The presiding military judge, Susan Crawford, will first decide whether the prosecution can try these men together and can seek the death penalty.
The trial, which may not begin for months, will be held at a specially designed courtroom within a tent city called Camp Justice at Guantanamo Bay.
Delayed charges, trial
MARGARET WARNER: And for more on today's announcement, we get two perspectives. Brad Berenson was in the White House Office of Legal Counsel from 2001 to 2003 and was involved in earlier versions of the military commissions law.
And Eugene Fidell is president of the National Institute of Military Justice and a private lawyer specializing in military cases.
Welcome, gentlemen. Thank you for coming.
Brad Berenson, how would you explain the government's decision, after six-and-a-half years, bring these cases now, and through this venue?
BRAD BERENSON, Former Associate Counsel to the President: Well, the first thing to understand is that the men who were charged in this case have been in CIA custody in the high-value detainee program for most of the time since 9/11.
So they were not transferred to Guantanamo and were not even really eligible for military trial until fairly recently.
But the other part of this is that the earlier versions of the military commissions law were struck down by the Supreme Court, and Congress had to act and pass legislation in 2006 to set up the system that's now in place to try these men.
MARGARET WARNER: What would you add to that?
GENE FIDELL, National Institute of Military Justice: What I'd add is that nothing prevented the government from bringing these individuals to trial earlier. The fact that they were being held by another agency of the federal government has nothing to do with whether the United States government as a whole was in a position to commence the process earlier.
MARGARET WARNER: But then is it fair to say that the decision to have the CIA hold them, presumably for interrogation, reflect a decision by the higher-ups in the administration, namely the White House?
GENE FIDELL: Well, of course, but I think the purpose was to try to extract as much intelligence as possible; that was the value that was given priority.
Military trial instead of civilian
MARGARET WARNER: Now, you heard General Hartmann say -- and we also heard Attorney General Mukasey describe the procedures here. And General Hartmann said essentially they will be given a fair trial, consistent with American standards of justice.
And, Brad Berenson, how different are the procedures that are going to be used in this trial different from those that most Americans are familiar with, in a civilian case, perhaps a capital case, here with the death penalty?
BRAD BERENSON: I would say the procedures are about 5 percent to 10 percent different. To a lay observer, this is going to look very much like a familiar criminal trial, and the differences really won't be apparent.
The differences go to the panel of military judges that will make the ultimate decisions here and render the verdicts versus a civilian jury that you would have in the civilian system, some differences in the rules of evidence, such as those described by Attorney General Mukasey earlier. But...
MARGARET WARNER: When he said hearsay would be admissible probably in more circumstances than in a civilian trial.
BRAD BERENSON: That's right. The rules of evidence are a little less strict in the military commission process than they are in the civilian context to account for battlefield and intelligence realities.
MARGARET WARNER: What would you add to that?
GENE FIDELL: Well, I would disagree with Brad's estimate of, say, 10 percent difference. For example, the strict rules of evidence are what we're accustomed to seeing in federal district court or even in general courts martial.
Here, the strict rules of evidence don't apply. There's a kind of watered-down version. The key is reliability, which, of course, that's a desirable factor to take into account.
But there is a big difference between a system that tolerates the use of hearsay evidence, which is evidence of out-of-court statements offered for the truth of the matter -- which is basically forbidden, subject to certain exceptions, in American criminal law.
Another very significant difference is the people who are presiding. There's only going to be one legally trained decision-maker in the courtroom. That's the military judge.
The other members -- you may call them judges, they're actually jurors -- they're not legally trained. There's a substantial difference between this arrangement and, for example, trial in federal district court, where the judge -- and Judge Mukasey, the attorney general, was a federal district judge -- serves with life tenure and, indeed, even salaries can't be reduced. And the protection is the greatest known to American constitutional law.
MARGARET WARNER: How significant do you think that is, that the members of this jury -- and we shouldn't call them that, because they're a panel -- are all members of the military? They're not really jurors of your peers, neither are they lawyers.
BRAD BERENSON: This is quite consistent with the way military trials of all kinds take place. You don't have civilian juries in the military system; you have juries composed of members of the military, in this case officers.
The presiding judge here is a lawyer with legal training. The salary and tenure protections that apply to Article III judges in the civilian system never obtain in the military system.And the important thing to understand about the rules of evidence is that these are essentially the same rules of evidence that apply in war crimes tribunals around the world, including those convened by the United Nations to deal with problems in Rwanda or the former Yugoslavia. They are relaxed from the civilian system, but very much the norm for war crimes.
Evidence through torture
MARGARET WARNER: Can I just shift slightly -- because I know we could continue that debate -- and talk about the admissibility of certain kinds of evidence, and particularly confessions? And, again, we heard Jim ask the attorney general about anything extracted under waterboarding.
What is your understanding of how that will be handled?
GENE FIDELL: I was very disappointed in Attorney General Mukasey's comments on waterboarding. He's danced around this both in the comments, his interview with Jim tonight, and also in prior public statements.
Waterboarding has been treated as a crime by the United States for many, many years; there's no question about it. And we shouldn't be dancing around it.
MARGARET WARNER: But in this case, is what I'm really interested in -- will this undercut the prosecution's case?
GENE FIDELL: There will be a battle, I guess, if the United States, if the prosecutors try to admit evidence that is either directly or indirectly the fruit of waterboarding.
The question then will be, is waterboarding torture? And a legal determination is going to have to be made. That's not going to be something that anyone can dance around. It will be an up-or-down vote.
And that is going to be a core legal issue, if the government tries to present evidence directly or indirectly drawn from waterboarding.
MARGARET WARNER: How do you see this playing out?
BRAD BERENSON: The standard that the judge will apply here -- and this is dictated by the Military Commissions Act passed by Congress -- any evidence that comes about as a result of torture is flatly inadmissible.
So to the extent the defense contends that a particular piece of evidence was extracted by torture from Khalid Sheikh Mohammed, it won't be admissible and the judge will, as Gene says, be compelled to determine whether the particular technique at issue is torture, including, perhaps, waterboarding.
For anything short of torture, coercive interrogation, harsh interrogation, duress, that is a discretionary decision for the presiding judge based on a determination about whether that evidence is sufficiently reliable.
If the judge believes that it's reliable notwithstanding the tough tactics, it will come in. If the judge thinks it's unreliable, it will stay out.
Death sentences unlikely
MARGARET WARNER: Finally, the death penalty, the government is going to at least go for the death penalty here. Do you think that complicated this case? What are the implications of that?
GENE FIDELL: Well, the implications are to ratchet up public attention to these proceedings. I think public attention was going to be very, very high in any event, but if it's possible to get even more public attention, that's certain to do it.
The reason is, number one, all of these proceedings are quite controversial around the world, including the aspect relating to waterboarding.
But beyond that, capital punishment is very, very unpopular around the world. I mean, we are -- and I don't know if literally a minority, but certainly many countries, including countries that are our traditional cultural and political allies, really frown on capital punishment.
And I think we're going to run into hostility and ill-will among our friends, not to mention among other countries that don't wish us so well.
MARGARET WARNER: Do you think the fact that they're going for the death penalty here will undercut the credibility of this, either at home or internationally, really, as he says?
BRAD BERENSON: I don't think it undercuts the credibility of the process. I do think that it ratchets up the controversy at least one degree. It's already going to be high; it's already going to be a celebrated trial.
I think that, unless you're a death penalty abolitionist, the imposition of the death penalty for the organizers and perpetrators of 9/11 is certainly a fair and just punishment.
But I also think there are serious reasons to think that seeking the death penalty here could actually be contrary to the larger long-term national security and diplomatic interests of the United States. And that will be a decision for the convening authority, for Judge Crawford.
MARGARET WARNER: And just briefly, in what way?
BRAD BERENSON: Well, it could undermine cooperation in the future from allies who are very much opposed to the death penalty and inhibit some intelligence cooperation.
It could stimulate our adversaries by making martyrs out of these individuals. I suspect that, from the perspective of these defendants, a life in prison in the United States might well be worse than what they perceive as martyrdom.
MARGARET WARNER: A final point?
GENE FIDELL: Brad makes some good points. I would say, it's been since 1961 the last time we had a military execution in this country. So we're not really in love with the death penalty in the military justice system, and I think you'll see the same trend here.
MARGARET WARNER: All right, we'll have to leave it there. Gene Fidell and Brad Berenson, thank you both.
GENE FIDELL: Thank you.
BRAD BERENSON: Thank you.