The chief prosecutor for the Guantanamo Bay military tribunals said Wednesday that he is seeking to withdraw one of the eight charges against five men accused of planning and aiding the Sept. 11 terrorist attacks.
Army Brig. Gen. Mark Martins said he has asked a Pentagon legal official to dismiss the charge of conspiracy to comply with an appeals court ruling in a separate case, but the men will still face charges that include nearly 3,000 counts of murder each and could still get the death penalty if convicted at a trial at the U.S. base in Cuba.
Martins said dropping the conspiracy charge would remove a potential legal challenge to the prosecution of Khalid Sheikh Mohammed, who has portrayed himself as the mastermind of the Sept. 11 attacks, and his four co-defendants.
"This action helps ensure the prosecution proceeds undeterred by legal challenge," he said in a statement.
Lawyers for two of the defendants, Mustafa Ahmad al-Hawsawi and Ammar al-Baluchi, said the decision will make it harder to convict their clients because they, unlike Mohammed, are accused of relatively minor support roles in the terror attacks.
"The withdrawal of the conspiracy charge essentially removes the heart of the body of charges currently pending against Mr. al-Hawsawi," said Navy Cmdr. Walter Ruiz, his military defense attorney.
A pretrial hearing is scheduled for the defendants later this month at Guantanamo but their trial is likely at least a year away.
Martins submitted his recommendation to the official who oversees the military tribunals for terrorism defendants at Guantanamo who must ultimately approve the decision.
The prosecutor's recommendation was a response to an appeals court decision in October that threw out the August 2008 conviction by a Guantanamo military tribunal of Salim Ahmed Hamdan, a former driver for Osama bin Laden. He was convicted of providing material support to terrorism, but the court ruled that was not a war crime under international law at the time he engaged in the activity for which he was convicted.
The Justice Department said Wednesday that the court must also reverse the November 2008 conviction of Ali Hamza Ahmad Suliman al-Bahlul, who was found guilty of the same charge for producing al-Qaida propaganda.
The Sept. 11 case is much more complex, with the defendants charged with multiple counts for allegedly orchestrating the hijacking of jets that crashed into the World Trade Center, the Pentagon and a field in Shanksville, Pennsyvlania.
The chief prosecutor recommended that the convening authority dismiss the conspiracy charge against Khalid Shaikh Mohammad in response to a recent U.S. federal appeals court decision that provided guidance for evaluating the permissibility of charging offenses for conduct occurring prior to 2006. The withdrawal of the conspiracy charge removes an issue that would otherwise generate uncertainty and delay resulting from prolonged litigation in the capital prosecution of the Sept. 11 attacks.
"There is a clear path forward for legally sustainable charges," Martins said. "The remaining charges are well-established violations of the law of war and among the gravest forms of crime recognized by all civilized peoples. "