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6 Gitmo detainees to face trial for 9/11

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  • NEW: Ex-Navy lawyer warns that an unfair trial could make the men martyrs
  • "There will be no secret trials," general says
  • Judge to decide if government can use information gleaned from interrogations
  • If approved, it will mark the first time a Guantanamo detainee has faced trial
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WASHINGTON (CNN) -- Six men being held at Guantanamo Bay, Cuba, will go before military commissions and could face the death penalty if it is judged they were involved in the September 11, 2001, attacks, a general said Monday.

The men will be treated like members of the U.S. military during their judicial proceedings, he said.

The proceedings will be dictated by the Military Commissions Act, which Congress passed to handle arrestees in the war on terror. The act requires that the detainees have access to lawyers as well as to any evidence presented against them.

They also will have the right to appeal a guilty verdict, potentially through a civilian appeals court and perhaps the U.S. Supreme Court, according to the act. The government plans to make the proceedings as public as possible, said Brig Gen. Thomas Hartmann. Watch Hartmann outline the charges »

What is murkier, however, is whether a military prosecutor will be able to use any information or confessions gleaned through controversial tactics like waterboarding, an interrogation technique designed to simulate drowning. That will be up to a judge to decide, Hartmann said.

"It's our obligation to move the process forward to give these people their rights," he said. "We are going to give them rights that are virtually identical to the rights we provide to our military members."

Despite Hartmann's guarantees, Charles Swift, a former U.S. Navy attorney, said the process will not afford detainees an adequate defense. He also raised concerns that trying and executing the men unfairly could make them martyrs in the eyes of extremists.

"The losers will be the American public unless some fundamental changes are made very quickly," he said.

Hartmann, the legal adviser to the military commission trying the men, announced Monday that the government will seek the death penalty against the six detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed. Prosecutors hope to try the men together.

Among the charges leveled against the men are murder and conspiracy "in violation of the law of war," attacking civilians and terrorism. Four of the suspects will also be charged with hijacking, Hartmann said.

The 169 charges allege a "long-term, highly sophisticated plan by al Qaeda to attack the United States of America," he said.

Though the proceedings will not be televised, Hartmann said the government intends to keep the proceedings as open as possible except when classified information is presented that could compromise national security. Watch how waterboarding could play a role in the trials »

"I've been advised by the prosecutors that relatively little amounts of evidence will be classified, but it's still a possibility, and we have rules and procedures and rules of evidence in place to deal with that," Hartmann said. "There will be no secret trials."

The suspects are accused of helping plan the September 11 attacks in which hijackers flew two jets into the World Trade Center in New York and another jet into the Pentagon in Washington. Another hijacked plane crashed near Shanksville, Pennsylvania.

According to the 9/11 Commission Report, 2,974 people were killed in the attacks, not including the 19 hijackers.

Charged along with Mohammed are:

  • Mohammed al-Qahtani, the so-called 20th hijacker in the 9/11 attacks;
  • Ramzi bin al-Shibh, accused of being an intermediary between the hijackers and al Qaeda leaders and finding flight schools for the hijackers;
  • Ali Abd al-Aziz Ali, alleged to have sent approximately $127,000 to hijackers and arranging travel for nine of them;
  • Mustafa Ahmed al-Hawsawi, accused of providing the hijackers with money, clothes and credit cards;
  • Walid bin Attash, who is accused of training two of the 9/11 hijackers and assisting in the hijacking plan.
  • Mohammed, bin Attash, al-Shibh and Ali will also be charged with hijacking or hazarding an aircraft, Hartmann said. See the suspects and what they're accused of »

    Judge Susan Crawford will decide whether to approve the charges and prosecutors' request to seek the death penalty, Hartmann said. The detainees would then enter pleas within 30 days.

    A military commission would be assembled within 120 days at the U.S. Naval Base Guantanamo Bay, Cuba. If Crawford approves the charges, it will mark the first time that Guantanamo detainees have been charged in the September 11 attacks.

    About 380 foreign nationals are being held at Guantanamo. The detainees' lawyers have repeatedly complained that their clients are being denied due process.

    The U.S. Supreme Court has twice expressed reservations about how the government handles detainees at the U.S. naval base.

    In 2006, the high court ruled the Bush administration's use of military tribunals was unconstitutional because the system did not allow terror suspects to challenge their detention.

    Congress last year passed the Military Commissions Act, which provided terror suspects with a limited right to appeal convictions and reduced the jurisdiction of federal courts.

    According to the act, the detainees will be allowed to see all evidence against them, call defense witnesses and cross-examine prosecution witnesses.

    If Crawford approves seeking the death penalty in the cases, the 12-member military commission must unanimously find the detainees guilty. The detainees will be allowed to appeal guilty verdicts in the Court of Military Commission Review, then the District of Columbia Circuit Court of Appeals and then the U.S. Supreme Court.

    Several legal and political challenges will be presented during the proceedings, and CNN senior legal analyst Jeffrey Toobin said it could be five years before the trials are complete. Watch why the trials could prove to be difficult »

    "One thing's clear about Guantanamo is that the next president is going to have to resolve this," Toobin said.

    One hurdle lies in seeking the death penalty. Key U.S. allies like Australia and Britain have blasted the U.S. for seeking the death penalty and have vowed to fight efforts to execute any of their national held at Guantanamo. Most countries join Australia and Britain in their opposition to capital punishment.

    Another issue expected to stall the process is whether prosecutors will be able to use information gathered using controversial interrogation techniques.

    On February 5, CIA Director Michael Hayden for the first time publicly confirmed Mohammed and two other terror suspects were subjected to waterboarding.

    The technique was used on top al Qaeda detainees in the aftermath of the attacks to "help us prevent catastrophic loss of life of Americans or their allies," Hayden said.

    After Monday's announcement, Hayden, in a memo obtained by CNN, wrote CIA employees to laud the decision to try the detainees and called it "a crucial milestone on the road to justice for the victims of 9/11." E-mail to a friend

    CNN's Barbara Starr and Allan Chernoff contributed to this report.

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