WASHINGTON - Khalid Sheikh Mohammed and four codefendants accused of organizing the Sept. 11, 2001, attacks are meeting to plot legal strategy ahead of their transfer to New York and are learning as much as possible about criminal procedure in U.S. federal court, according to sources familiar with the detainees' deliberations.
Although the five men wanted to plead guilty in a military commission earlier this year to hasten their executions, sources now say that the detainees, who are at Guantanamo Bay in Cuba, favor participating in a full-scale federal trial to air their grievances and to expose their treatment while previously held by the CIA at secret prisons.
The sources, who cautioned that the detainees' final decision remained uncertain, spoke on the condition of anonymity because all communications with high-value detainees are presumptively classified.
The detainees' "brothers' meetings" were set up to allow them to prepare for a trial at Guantanamo. The military has allowed the gatherings to continue because charges have not been formally withdrawn in the commission process, despite last month's announcement that Mohammed and the others would be tried in Manhattan.
The five accused have held two all-day meetings at Guantanamo since Attorney General Eric H. Holder Jr. said they would face federal criminal prosecution, according to Joseph DellaVedova, a spokesman for the Office of Military Commissions. DellaVedova said they broke only for meals and prayers during the get-togethers. The military has also provided computers to the men in their cells to work on their defense.
It is unclear when the men will be transferred to New York. The Obama administration has yet to file a 45-day classified notice with Congress that it intends to move the prisoners into the United States, said Dean Boyd, a Justice Department spokesman. That suggests their initial appearance in court in Manhattan will not come before February; the trial is not expected to begin until late 2011.
In hearings at Guantanamo, the five detainees have trumpeted their role in the 9/11 attacks and broadcast their fealty to Osama bin Laden, causing some consternation among observers that the men will use their federal trial as a pulpit of sorts.
Federal officials, though, say they are confident that some of the rhetorical flourishes that Mohammed, in particular, offered at Guantanamo will be kept firmly in check in U.S. District Court.
Facing trial with Mohammed are Ramzi Binalshibh, a Yemeni; Walid bin Attash, a Yemeni better known as Khallad; Ali Abd al-Aziz Ali, Mohammed's nephew and a Pakistani also known as Ammar al-Baluchi; and Mustafa Ahmed al-Hawsawi, a Saudi.
Among other issues being raised at Guantanamo, Mohammed and the others are discussing defense counsel, sources said.
At the military tribunal, Mohammed, bin Attash, and Ali represented themselves with assistance from civilian and military lawyers. Attorneys for Binalshibh and Hawsawi, however, had challenged the mental competence of their clients to represent themselves, and the issue had not been resolved when the Obama administration suspended proceedings at Guantanamo.
The issue of self-representation will have to be taken up again in federal court for all five defendants.
In New York, lawyers for defendants in death cases are usually drawn from a "capital panel," a short list of lawyers with experience in death-penalty cases. Lawyers will also need security clearances to handle classified evidence that is off limits to the defendants.