Confession at Guantánamo by 9/11 Mastermind May Aid Other Qaeda Defendants

By ADAM LIPTAK
Published: March 16, 2007
http://www.nytimes.com/2007/03/16/us/16legal.html?th&emc=th

The admissions made by the mastermind of the Sept. 11 attacks illuminated and transformed the cases against him and the 13 other Qaeda leaders transferred last year from C.I.A. prisons to the Navy base at Guantánamo Bay, Cuba.

In acknowledging last Saturday his role in more than 30 terrorist attacks and plots, Khalid Shaikh Mohammed certainly simplified the case against himself and may have effectively signed his own death warrant when he eventually faces a military trial.

But those same statements, released on Wednesday by the Pentagon, may complicate the prosecution of his former colleagues.

Speaking to a military tribunal that considers just the narrow question of whether Guantánamo detainees were properly designated as enemy combatants, Mr. Mohammed was so expansive in his acceptance of responsibility that other defendants might be able to use his statements in their own defense.

In a transcript of the hearing, Mr. Mohammed also disavowed information he had told Central Intelligence Agency interrogators about his accomplices, again potentially helping the other defendants.

A revised version of the transcript released Thursday added another chilling confession. Mr. Mohammed said he decapitated Daniel Pearl, a reporter for The Wall Street Journal, in Pakistan in 2002. The military said it had held back the passage about Mr. Pearl while it notified his family.

That confession could figure in the case of Ahmed Omar Sheikh, who is appealing his death sentence in Pakistan for his role in Mr. Pearl’s abduction and murder. Mr. Mohammed and the other Qaeda leaders will eventually face charges before military commissions that they are guilty of war crimes, many of which carry death sentences.

Unlike the recent proceedings, before Combatant Status Review Tribunals, those trials will largely resemble ones before civilian criminal courts. Officials have said that they intend to charge the men this year and that those trials could start early next year.

The trials of three less significant detainees, none of them among the 14 leaders, are expected to begin soon.

It is not clear whether Mr. Mohammed was really involved in as many terrorism plots as he said or whether he was simply indulging in a penchant for drama and self-aggrandizement. Nonetheless, his confession could have a significant effect on the round of tribunals. Several lawyers said his statement could be used against him in other settings.

“This statement is admissible and substantially hampers the ability of the defense to argue that he is not guilty,” said David B. Rivkin, an official in the administrations of Ronald Reagan and the first President George Bush. “The other side may argue that the poor dear was so stressed out by his earlier treatment that it had a lingering effect. That dog ain’t going to hunt.”

John Sifton, a senior researcher at Human Rights Watch, said he questioned whether the statement read for Mr. Mohammed by his representative authentically reflected his views.

“The grammar of it alone, when juxtaposed with his version of English, suggests it was prepared for him,” Mr. Sifton said. “It looked to me like it was printed out of whitehouse.gov.”

But Mr. Mohammed in places amended and then expressly adopted the statement, telling tribunal officials that he was not under any pressure or duress as he did so. He later freely discussed aspects of his terrorism activities in an extended monologue to the tribunal.

The debate over the consequences of Mr. Mohammed’s admissions rekindled a larger one, about whether he and other terrorism suspects should be considered criminals or combatants. Mr. Mohammed embraced the administration view at the informal hearing on Saturday. He was, he said, a soldier. He compared his actions to the revolutionary zeal of George Washington, spoke on behalf of people he said were improperly detained after the attacks of Sept. 11, 2001, and criticized American and Israeli foreign policy.

By giving him that platform on a military level, the United States has dignified and legitimized a criminal, Mr. Sifton said, adding that could have been avoided by charging Mr. Mohammed with crimes in ordinary American courts.

John Yoo, an architect of the administration’s legal response to the Sept. 11 attacks who is now a law professor at the University of California, Berkeley, drew a different conclusion from the transcript.

“K.S.M.’s statements show that he in fact was and is a treasure trove of intelligence information on Al Qaeda,” Professor Yoo said, referring to Mr. Mohammed by his initials. “He knew not just of past plots to attack the United States, but threats that were in motion at the time of his capture, threats that had to be stopped.

“The criminal justice system cannot handle the demand both for an open trial with the right to remain silent and the need to collect that intelligence and act on it swiftly and secretly.”

Mr. Rivkin said Mr. Mohammed’s statement confirmed the correctness of treating him as a combatant rather than a criminal.

“The only people who don’t think we’re at war are the critics,” Mr. Rivkin said. “We think we’re at war, and they think they’re at war.”

In the transcript, Mr. Mohammed said he had made false statements to “C.I.A. peoples,” and he gave examples, though the military deleted most of the details. Although the transcripts were redacted, they hinted of the aggressive questioning of Mr. Mohammed in his more than three years in C.I.A. custody.

They also showed some of the limitations of the hearings. Mr. Mohammed was denied what in criminal proceedings would be rudimentary protections, including, notably, the right to a lawyer.

The “personal representative” provided to Mr. Mohammed by the military, an Air Force lieutenant colonel whose name was not released, recited a 31-point statement in which Mr. Mohammed confessed to a vast array of crimes.

A criminal defense lawyer, by contrast, would have almost certainly advised a client to say nothing.

The two roles are very different, said Jumana Musa, an advocacy director at Amnesty International USA, which has been sharply critical of the detention policies.

“A personal representative is not a lawyer,” she said. “There is not privileged relationship. He can turn over any information he learns from the detainee, whether exculpatory or incriminatory.”

A second high-value Guantánamo detainee refused to appear before a status tribunal last Friday. But, through his representative, the detainee, Abu Faraj al-Libbi, submitted a comprehensive critique of the procedures used by the military.

“No lawyer, either assigned to the detainee or by the detainee’s choosing, has been made available to the detainee to assist in determining the nature of the evidence presented against him, its legality and its validity as evidence,” Mr. Libbi’s statement said. “The detainee needs legal guidance as to what kind of testimonies and statements are enough to refute the evidence presented against him.

“I am extremely keen to exercise my rights fully according the law of the United States.”

Lawyers for some Guantánamo detainees have asked the United States Supreme Court to hear their challenge to a recent law, the Military Commissions Act, that barred them from questioning the legality of their detentions in civilian courts through petitions for writs of habeas corpus.

The hurried status proceedings over the weekend may have been intended to demonstrate to the court that an alternative procedure is available and operating.

Professor Yoo said the military system was adequate and appropriate.

“The C.S.R.T. and military-commission process,” he said, using the initials of the review tribunals, “are the best way to balance the wartime needs for the trove of intelligence that K.S.M. has, while still creating a process that reviews whether he should remain in detention.”