WASHINGTON — The U.S. military is scrambling to assemble defense teams for six Guantanamo detainees who are facing the death penalty for their alleged roles in the Sept. 11, 2001, terrorist attacks that killed nearly 3,000 people.
Knowledgeable legal experts, however, said it's unlikely that they can be tried speedily, meaning the cases probably won't be heard before the Bush administration leaves office next January.
"I will move as quickly as I can, but we will take our time and we will not be bullied by the government," said Army Col. Steve David, the chief defense counsel in the Pentagon's Office of Military Commissions.
"I believe this is a defining moment in our history, and we are going to take our time to do it right," he said.
"Any attempt to do these cases in 2008 would be a mockery," said Joseph Margulies, a professor at the Northwestern University School of Law and a noted death penalty expert. He said that it would take at least a year for lawyers to familiarize themselves with the evidence against the six men.
The Pentagon Monday announced charges against the six that include conspiracy, murder in violation of the law of war, attacking civilians and terrorism. Among those charged was Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks.
It was the first time that U.S. authorities have charged anyone held at Guantanamo with direct involvement in the Sept. 11 attacks.
Prosecutors face a series of hurdles in bringing the cases, including likely battles over what evidence they'll be allowed to bring before the military commissions that will hear the cases.
The law that created the commissions forbids the use of evidence gathered by torture. Last week, CIA director Gen. Michael Hayden acknowledged to Congress that Mohammed and two other CIA detainees had been subjected to waterboarding, a technique that simulates the sensation of drowning. Hayden said in his testimony that the technique might not be legal, but the Bush administration has said that waterboarding isn't torture.
"If the government wants to use those statements or anything derived from those statements, it will have a serious problem," said Eugene Fidell, a Washington, D.C. attorney who specializes in military law.
David, an Indiana state judge who was mobilized to his current job, said that his office has nowhere near enough staff members to handle the defense of the six 9/11 defendants.
He said he'd need at least six lawyers, six paralegals and six independent investigators with top security clearances to work on the trials. As of Monday morning, he said, seven military lawyers had been assigned to his office. Six of those are already assigned to other cases.
The seventh — an Army major — began work Monday, and David said he didn't know if the new man had either death penalty defense experience or the necessary security clearances.
In the charging documents released Monday, the military spelled out how the six allegedly plotted the attacks, trained to fly planes, moved funds and practiced how to hide knives in their luggage.
The documents charge that Mohammed orchestrated the attacks and regularly updated al Qaida leader Osama bin Laden on the plot's progress. Mohammed was captured in Pakistan in 2003.
Outlining the plot took up 22 of the charging document's 88 pages. The remainder listed the names of the 2,973 people who died in the attacks.
The other five charged were:
_ Mohammed al Qahtani, whom the military said could have been the 20th hijacker had he not been turned down for a visa;
_ Ramzi Binalshibh, who's considered a top al Qaida detainee in Guantanamo. The military called Binalshibh a main intermediary between the hijackers and bin Laden. He also was named Mohammed's main assistant for "Planes Operations";
_ Ali Abd al Aziz Ali, a nephew of Khalid Sheikh Mohammed;
_ Mustafa Ahmad al Hawsawi, who helped move money among the hijackers;
_ Waleed bin Attash, who's charged with training some of the hijackers. For example, the military alleges that he prepared reports for al Qaida on to get knives onto flights.
The charges still must be approved by a civilian Pentagon official.
Only one of the six — Qahtani — has seen a lawyer during his five-plus years in U.S. custody, and it wasn't clear whether that lawyer, Gitanjali Gutierrez of the New York Center for Constitutional Rights, would represent him at the war crimes trial.
Other lawyers said it was unlikely that private civilian lawyers would be willing to help defend accused 9/11 conspirators.
"You need someone who is independently wealthy and has no concern for his physical safety," said Washington, D.C. attorney David Remes of Covington and Burling, who's filed petitions on behalf of Yemenis held at Guantanamo.
"No firm with substantial resources that works for corporations is going to take the cases of these men, because being accused of plotting the 9/11 attacks is different in kind from being accused of being a mere foot soldier," Remes said. "If the accusations against these men are correct, they really are the worst of the worst."
The Military Commissions Act of 2006 prohibits federal funds from being used in the alleged terrorists' defense, which would bar the use of federal public defenders, and resources to mount a defense would be scarce even for attorneys willing to undertake the cases.
"If private counsel wants to get involved, they have to do it for free, pass around a hat, or be paid for by a private organization," said Margulies, who's handling an unrelated wrongful detention case for another Guantanamo detainee, Abu Zubaydah, who was one of the three prisoners that Hayden said was waterboarded.
Defense lawyers, Margulies said, will need at least a year to familiarize themselves with the cases against their clients, find translators with the proper security clearances to speak help them speak with their clients and hire investigators to review highly classified information.
ON THE WEB
The Pentagon charging documents.
(Rosenberg, of The Miami Herald, reported from Miami, Youssef from Washington.)