The prosecution of five Guantanamo Bay prisoners accused of orchestrating the Sept. 11 attacks will go on — for now — with eight charges against each of the men, the Pentagon said Friday.
A Department of Defense legal official declined a prosecution request to withdraw the charge of conspiracy, which faced a likely challenge because of an appeal's court ruling in a separate case.
Convening Authority Bruce McDonald, a retired admiral and former Navy judge advocate general, said it was too soon to withdraw conspiracy because the ruling in the separate case might also ultimately be reversed.
The uncertain legal standing of the conspiracy charge will be a contested issue as the U.S. prepares to prosecute the five men before a military tribunal at the U.S. base in Cuba, a trial that is likely at least a year away.
Even if the conspiracy charge is later dropped from the case, all five could still get the death penalty.
The five prisoners face charges that include terrorism and nearly 3,000 counts of murder for their alleged roles in the planning and preparations for the Sept. 11, 2001, terrorist attacks. The men, who have been held at Guantanamo since September 2006, include Khalid Sheikh Mohammed, who has portrayed himself as the mastermind of the plot.
The chief prosecutor, Army Brig. Gen. Mark Martins, had recommended dismissal of the conspiracy charge because of an appeals court decision in October that threw out the August 2008 conviction by of Salim Ahmed Hamdan, a former driver for Osama bin Laden.
Hamdan was convicted at Guantanamo of providing material support to terrorism, but the appeals court ruled that was not a war crime under international law at the time he engaged in the activity for which he was convicted. The government is challenging the ruling, but legal experts say the same reasoning could be used to dismiss the conspiracy charge in the Sept. 11 case. Martins had said that dismissing the charge would remove a potential legal challenge.
James Connell, a lawyer for accused prisoner Ammar al-Baluchi, criticized the decision by the convening authority to allow the conspiracy charge to stand even though the chief prosecutor, Army Brig. Gen. Mark Martins, said it may not be legally viable and should be dismissed.
"The convening authority's attempt to drive the prosecution forward shows that the military commission structure is fundamentally unfair," he said.
A weeklong pretrial hearing is scheduled to start Jan. 28 to deal largely with defense challenges to other aspects of the case.