ACLU taps legal talent to defend alleged terrorists
BY CAROL ROSENBERG
The American Civil Liberties Union, which for years has scorned the Pentagon's military commissions as ''kangaroo courts,'' announced Friday that it will mount an effort to provide top civilian defense attorneys for alleged terrorists facing trial at Guantánamo, notably the alleged mastermind of the Sept. 11, 2001, terrorist attacks.
Former Attorney General Janet Reno is among top lawyers who have endorsed the $8.5 million effort, which will helpdefray the expenses of civilian defense attorneys working on the terrorism cases. Under the military commissions scheme, the Pentagon will not reimburse volunteer civilian attorneys for their expenses.
ACLU executive director Anthony Romero said a major thrust of the effort will be to defend Khalid Sheik Mohammed, who military officials say confessed to masterminding the 9/11 attacks and several other terrorist actions.
Mohammed was held in secret CIA custody until September 2006, and the CIA has admitted waterboarding him while he was being questioned.
Mohammed's case ''is likely to raise the most significant issues of torture, hearsay evidence and access to counsel,'' said Anthony Romero, the ACLU executive director.
At the Pentagon, a war court spokesman said the Office of Military Commissions had not received details about the ACLU program.
But Air Force Capt. André Kok noted that the law governing the trials entitles each Guantánamo defendant to a military defense lawyer and that volunteer civilian attorneys can also participate, without government reimbursement.
''The system allows for that,'' said Kok. ``There's a mechanism set in place for them to become part of that pool of qualified attorneys.''
Eleven lawyers have agreed to defend Guantánamo detainees facing death penalty charges at the war court, said Romero, whose offices are eight blocks from the former World Trade Center, which was ''Ground Zero'' on Sept. 11, 2001.
Because the men have been cast by the White House as the most reviled enemies of America, the ACLU and National Association of Criminal Defense Lawyers issued high-profile endorsements of the effort including one from Reno, who served as President Clinton's attorney general for both of his terms and is the longest serving attorney general in U.S. history.
''This is the time to demonstrate to the world that the United States need not abandon its principles,'' said Reno, ``even as it seeks to ensure the safety of its citizens.''
The program described Friday is the result of a stealthy collaboration between the ACLU, the National Association of Criminal Defense Lawyers and uniformed U.S. military lawyers.
On Feb. 11, the Pentagon prosecutor filed proposed death-penalty charges against Mohammed and five other men as alleged co-conspirators in the 9/11 attacks.
Since then, Army Reserves Col. Steve David, who is the commissions' chief defense counsel, has been trying to build teams of military attorneys qualified to handle the complicated death penalty cases from the mostly inexperienced military judge advocates general assigned to his office.
David, an Indiana judge in civilian life, has said he wants to meet American Bar Association standards in the cases -- meaning assigning 12 government lawyers, six investigators and six paralegals. At the same time, the defense JAGs have been attending ABA death-penalty training classes.
The military commissions legal advisor, Air Force Brig. Gen. Thomas Hartmann, has said that the military commissions are not obliged to follow ABA standards.
Among those who've volunteered to defend the 9/11 conspirators are Idaho attorney David Nevin, whose previous cases include the successful defense of a Saudi charged with terrorism; New York attorney Joshua Dratel, who defended clients charged with the 1993 bombing of the World Trade Center prosecutions; and Denise LeBoeuf, a prominent New Orleans capital defender. Romero said one of the 11 lawyers has agreed to defend Mohammed at before the military commission, if he's allowed to see Mohammed in private at the remote base, and Mohammed agrees to accept his services.
Romero declined to name the attorney, but said that lawyer had already applied for the high-level security clearance required to meet with Mohammed, who is held in seclusion at the U.S. Navy base in Cuba.
According to military transcripts, Mohammed has confessed to plotting worldwide terror attacks as well as personally beheading Wall Street Journal correspondent Daniel Pearl in Pakistan.
The ACLU is calling its Guantánamo effort ''The John Adams Project.'' Adams, who became the second U.S. president, defended British soldiers at their trial for the 1770 Boston Massacre.
The program marks an about-face in ACLU policy, which has sent observers to the military commissions at Guantánamo but has consistently called them kangaroo courts.''
''The only way you can protect the system from being a complete sham is to make sure that they have a good defense,'' said Jennifer Daskal of Human Rights Watch, who also has been a commissions observer. ``And one way to do that is to have strong, zealous experienced lawyers.''
Romero said the group decided to champion the defense effort in response to the recent acceleration of military commission prosecution efforts, which some have said are timed for the 2008 campaign season.
The ACLU chose to focus on Mohammed's defense, Romero said, because he appears to be ``the government's top priority in the prosecution. And whether or not they are able to convict Khalid Sheik Mohammed under these rules may well determine the fate of the almost 300 other men who are detained at Guantáamo.''
Several South Florida criminal defense attorneys learned of the project on Friday and were inquiring about volunteering.
''Where do I sign up?'' said renowned South Florida criminal defense attorney Milton Hirsch.
He said he had no reservations about offering to defend men cast by the White House as al Qaeda terrorists. ``I have no idea whether they're terrorists. But I have a problem with the fact that my government has held them for five to six years without any process of law, any formal accusation, any access to a legal system that can afford them those rights for which America stands.''