December 1, 2009
The Wisdom Fund

9/11 'Mastermind': Dim Prospect For A Fair Trial

by Enver Masud

The prospect of a fair trial for Khalid Sheikh Mohammed (KSM) appears dim. President Obama pledged that the alleged mastermind of the 9/11 attacks will receive a fair trial, but later he seemed to contradict himself.

A few days after that pledge, the Associated Press reported that "in a series of TV interviews during his trip to Asia, [Obama] said those offended by the legal rights accorded Mohammed by virtue of his facing a civilian trial rather than a military tribunal won't find it 'offensive at all when he's convicted and when the death penalty is applied to him.'"

Cynthia Hujar Orr, president of the National Association of Criminal Defense Lawyers, said Obama only made it harder to find an impartial jury. "It's already very difficult to get a fair proceeding in any of these high-profile cases," Orr said.

Attorney General Eric H. Holder Jr., testifying before the Senate Judiciary Committee, was "confident that Mr. Mohammed would be convicted."

Obama's and Holder's confidence in a guilty verdict for KSM is not without foundation.

New York based attorney, Scott Fenstermaker, who has represented Ali Abd al-Aziz Ali in various legal proceedings at Guantanamo Bay -- in an interview published in the Populist -- had this to say about the prospect for a fair trial for Guantanamo detainees:

"The government wants to control who represents the detainees. The government not only wants to, but it is. The government does this by controlling the judges. The judges are doing exactly what the government wants them to do in these cases. The judges ask what the government wants them to do, and then they do it."

Fenstermaker ought to know. Referring to Ali Abd al-Aziz Ali, "The government would not let me represent him . . . The government goes crazy every time the detainees want me to represent them," he said.

In United States v. Zacarias Moussaoui, defence lawyers seemed to ignore a key prosecution exhibit that would have contradicted the government's account of Flight 77 -- alleged to have struck the Pentagon on September 11, 2001.

According to a September 12, 2001 front page article in the Washington Post, by Marc Fisher and Don Phillips, Barbara K. Olson called her husband twice in the final minutes. Her last words to him were, "What do I tell the pilot to do?"

"She called from the plane while it was being hijacked," said Theodore Olson -- 42nd Solicitor General of the United States. "I wish it wasn't so, but it is."

However, prosecution exhibit P200054 from the trial of Zacarias Moussaoui contradicts the Solicitor General's account. It shows that Barbara Olson made only one phone call -- it did not connect, and it lasted for 0 seconds.

Given Fenstermaker's experience, and the defence lawyer's failure to make use of evidence that contradicts the government in the Moussaoui trial, the prospect of a fair trial for KSM appears dim.

Don't expect the trial judge to admit hard facts that cast "reasonable doubt" on the case against KSM.

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[A month after the Sept. 11 attacks, President Bush released a list of the world's most-wanted terrorists. There were 22 names on it. Khalid Shaikh Mohammed was No. 22.

And the list wasn't alphabetical.

But, sometime between then and early Saturday morning, when Mohammed was captured in Pakistan, the U.S. government identified Mohammed as the mastermind behind the al-Qaida plot.--Debra Pickett, "'Terror Boss' Moves Up Ladder As U.S. Sees Fit," Chicago Sun-Times, March 4, 2003]

[ . . . the last post known to be held by the former Kuwaiti with a Pakistani passport was media adviser to the marriage of Osama bin Laden's son in Kandahar in January of 2001.--Robert Fisk, "A Breakthrough in the War on Terror? I'll Believe It When We See Some Evidence," Independent, March 3, 2003]

Enver Masud, "9/11 'Mastermind' Khalid Sheikh Mohammed Charged," The Wisdom Fund, February 11, 2008

Enver Masud, "9/11 Unveiled," The Wisdom Fund (September 11, 2008)

"A closer look at the alleged Sept. 11 conspirators," Washington Post, November 14, 2009

David Feige, "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law," slate.com, November 19, 2009

Peter Finn, "9/11 suspects are meeting to lay out strategy for New York trial," Washington Post, December 24, 2009

Scott Shane, "Site for Terror Trial Isn't Its Only Obstacle," New York Times, January 30, 2010

Peter Finn and Julie Tate, "2005 destruction of interrogation tapes caused concern at CIA, e-mails show," Washington Post, April 16, 2010

Carol Rosenberg, "For reporters, the rules at Guantanamo change daily," McClatchy Newspapers, July 26, 2010

"Muslims Didn't Do It," The Wisdom Fund, September 11, 2010

Peter Finn and Anne E. Kornblut, "Plans fade for U.S. trial of alleged 9/11 architect," Washington Post, November 13, 2010

Dahlia Lithwick, "Cowardly, Stupid, and Tragically Wrong: The Obama administration's appalling decision to give Khalid Sheikh Mohammed a military trial," slate.com, April 4, 2011

Sherwood Ross, "Legal Scholar Compares Gitmo Court to Stalinist Show Trials," slate.com, April 17, 2011

"DOD Announces Charges Sworn Against Five Detainees Allegedly Responsible for 9/11 Attacks," Armed Forces News, May 31, 2011

MORE: "What Really Happened on September 11, 2001," The Wisdom Fund