U.S. Legal Officials Split Over How to Prosecute Terrorism Detainees
January 7, 2013
By CHARLIE SAVAGE
WASHINGTON — The Obama administration legal team is divided over whether to drop two terrorism cases originally prosecuted in a military commission at Guantánamo Bay, Cuba, a decision that could have far-reaching consequences by significantly reducing the number of other prisoners who can receive tribunal trials.
The two defendants were found guilty in 2008 by a tribunal on charges — including “material support for terrorism” — that the Justice Department concedes were not recognized international war crimes at the time of their actions. In October, an appeals court rejected the government’s argument that such charges were valid in American law and vacated the “material support” verdict against one of the men, a former driver for Osama bin Laden.
Administration officials are now wrestling with whether to abandon the guilty verdict against the other detainee, a Qaeda facilitator and maker of propaganda videos. He was convicted of both “material support” and “conspiracy,” another charge the Justice Department has agreed is not part of the international laws of war, and his case is pending before a different panel of the same appeals court.
Terminating that case without a further fight, however, would mean giving up on charging other detainees with those offenses. It would also require prosecutors to drop a similar charge in the system’s centerpiece case, the coming trial of Khalid Shaikh Mohammed and four others accused as accomplices in the Sept. 11, 2001, terrorist attacks. More direct charges, like attacking civilians and hijacking, would remain against the Sept. 11 defendants.