ACLU to Back Up Defense of 9/11 Detainees

    April 4, 2008
    Wall Street Journal
    By Jess Bravin

    WASHINGTON -- The American Civil Liberties Union is spearheading a high-profile effort to defend Khalid Sheikh Mohammed and other alleged 9/11 conspirators from conviction and execution by the Bush administration's military commissions at Guantanamo Bay.

    Backed by a slate of prominent legal figures, including former Attorney General Janet Reno and former Federal Bureau of Investigation Director William Webster, the ACLU has assembled a team of top civilian attorneys to supplement the military defense counsel assigned to represent Guantanamo's "high-value detainees."

    The ACLU has the support of Guantanamo's chief military defense lawyer, Col. Steven David, who says the government hasn't provided him sufficient resources to adequately contest a death-penalty trial.

    The effort significantly adds to the legal forces that over the past seven years have challenged the administration's plan to run an offshore court that provides defendants fewer rights than civilian trials or courts-martial. The addition of the ACLU in particular, with its large financial resources, is a major shot in the arm for those who oppose the tribunal system.

    The administration has announced plans to seek the execution of seven Guantanamo prisoners, who will be tried before an offshore military commission using a new rulebook drafted by the Defense Department.

    The creation of a high-powered legal defense team is a step toward answering the many questions about how the tribunals will operate. Much remains unclear, including rules of evidence and what access the press and public will have to the proceedings.

    While civilian courts provide additional help for capital defendants, the military commission procedures don't specify any particular requirements, Col. David said.

    He said he intended to follow the guidelines adopted by the American Bar Association, which call for each defendant to have at least two qualified attorneys, an investigator and a "mitigation specialist," to research arguments against execution should a conviction result.

    His current office is too small to provide that level of staffing and military attorneys have little experience with death-penalty litigation, he said.

    "An office where everyone is death-penalty qualified and has tried at least one death penalty case? Don't have it. Won't have it," said Col. David, a reservist who in civilian life is a county judge in Indiana.

    The National Association of Criminal Defense Lawyers is working with the ACLU to provide death-penalty lawyers, while other groups, including the Center for Constitutional Rights in New York and Reprieve, a British nonprofit, have helped represent other Guantanamo prisoners.

    The groups have approached private foundations to seek funding help for the defense effort, people familiar with the project say. A spokeswoman for one of those foundations, George Soros's Open Society Institute, said it had "received requests related to the Guantanamo detainees" but has not yet decided whether to get involved.

    Maj. Bobby Don Gifford, legal spokesperson for the military commissions, said "the Military Commissions have gone to great lengths to provide a system that is full, fair, and just" and suggested the commissions already had adequate resources. He added that ABA guidelines aren't binding on any court.

    The high-value detainees have been held under extraordinary security at Guantanamo Bay and most have never seen a lawyer. They need not accept either military counsel or the ACLU lawyers. But Col. David said that in light of their harsh treatment by U.S. authorities -- Mr. Mohammed, for instance, has been subjected to waterboarding -- the prisoners might distrust military counsel.

    Anthony Romero, the ACLU's executive director, said he had recruited a "dream team" of more than 30 lawyers to work on the project, including Edward McMahon, who helped represent convicted 9/11 conspirator Zacarias Moussaoui in federal district court.

    "The defendants in these proceedings have been charged with horrendous crimes," Mr. Romero said in a written statement. But "it is a central tenet of our system of justice that guilt must only be decided after a fair trial, not beforehand," he said.

    Mr. Romero acknowledged that standing up for the alleged 9/11 conspirators might be unpopular. He recalled past instances when the organization has represented widely detested clients, such as when neo-Nazis sought to march through a largely Jewish neighborhood of Skokie, Ill., in 1977.

    The organization sought to mitigate a public outcry -- and perhaps the alienation of some donors -- by lining up support from such figures as Ms. Reno and Mr. Webster.

    Ms. Reno, who spent 15 years as the local prosecutor in Miami before President Clinton named her attorney general, said in a statement provided by the ACLU that "this is the time to demonstrate to the world that the United States need not abandon its principles, even as it seeks to ensure the safety of its citizens."

    Eric M. Freedman, a Hofstra University law professor who helped draft the ABA's death penalty guidelines, said the ACLU initiative didn't relieve the government's responsibility to pay for an adequate defense.


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