Washington (CNN) -- At least one -- and possibly all five -- of the detainees with alleged ties to the terrorist attacks of September 11, 2001, will plead not guilty in a "justification defense," arguing the attacks were responses to American foreign policy, according to a lawyer who met with one of the defendants.
Attorney Scott Fenstermaker said he met with defendant Ali Abd al-Aziz Ali at the Guantanamo Bay, Cuba, detention facility last week, and that when Ali and four other men face trial in New York, they likely will plead not guilty and then argue that the attacks were justified.
Fenstermaker, who is representing Ali in a procedural matter at Guantanamo, said he expects Ali will acknowledge a role in the 9/11 attacks, and believes Ali's goal in pleading not guilty would not necessarily be acquittal. The attorney said Monday that during his meeting with Ali at Guantanamo, "he said, 'Here's my goal,' and he wrote down the word 'death' on a piece of paper."
Ali, also known as Ammar al-Baluchi, is described in the 9/11 Commission Report as having helped the hijackers with money transfers, plane tickets, hotel reservations and guidance.
Fenstermaker said that although he is Ali's attorney in the Guantanamo proceeding, so far he has not been asked to represent Ali at trial in New York. He said he cannot speak on behalf of the other four suspects, but he understands they have agreed to coordinate their strategies.
No charges have been filed yet, but Attorney General Eric Holder said this month he intends to try the five suspects in New York. They include Khalid Sheikh Mohammed, Ali's uncle, who has boasted to investigators that he masterminded the attacks of 9/11.
A decision by the suspects to plead not guilty opens the possibility of acquittal, although CNN senior legal analyst Jeffrey Toobin said of Mohammed, "I think the chances of him being acquitted are approximately .001 percent."
Holder has pledged that, even if acquitted, none of the five defendants would be released in the United States.
But many Republican lawmakers say holding the trials in normal public courts is an unnecessary risk, because it gives the suspects rights they would not have had if they were tried in military tribunals. And although cameras are not allowed in federal courts, the trials could also give the defendants a soapbox to incite others.
Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, last week told Holder he was concerned that holding the trial in open court "will provide Khalid Sheikh Mohammed the position to be a martyr and a hero among al Qaeda sympathizers around the world."
And after Holder finished testifying before the committee, Alice Hoagland, the mother of a passenger killed on one of the planes hijacked on 9/11, told him, "I am afraid that the theatrics are going to take over."
Toobin said that during the trial, "a judge would have to restrict the defendants to using, and speaking about, relevant evidence as to guilt or innocence."
"Their views of geopolitics," he said, "are not related."
But during the penalty phase, the defendants could be given more leeway.
"There's always a time during the penalty phase where the defendant is basically allowed to say whatever he or she wants to," said Patrick Rowan, a former top prosecutor in the National Security Division. "I suspect the judge here will be quick to cut them off if they go too far afield, but some of that will definitely happen."
Still, even if a defendant like Mohammed has a chance to speak in court, Holder said, the world "will see him for the coward that he is."
"I'm not scared of what Khalid Sheikh Mohammed has to say at trial, and no one else needs to be afraid, either," Holder said.
http://www.cnn.com/2009/CRIME/11/23/terror.suspect/index.html
