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Attorney: 9/11 death penalty trial could create 'nightmare scenario'

  • Story Highlights
  • Attorney Charles Swift: "Losers will be the American public" unless changes made
  • He represented bin Laden's driver; case led to rejection of tribunals for detainees
  • He said suspects may not be represented with adequately trained attorneys
  • Swift warns suspect Khalid Shaikh Mohammed would then look like a martyr
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ATLANTA, Georgia (CNN) -- The trials planned for six suspects in the 9/11 attacks -- in which the government proposes to seek the death penalty -- could be unfair and could leave Khalid Shaikh Mohammed looking like a martyr to his supporters, a former U.S. Navy attorney said Monday.

"The losers will be the American public unless some fundamental changes are made very quickly," said Charles Swift, who represented Osama bin Laden's driver in a case that ultimately led the Supreme Court to reject the Bush administration's military tribunals for detainees in 2006.

A military commission to try the six detainees will take place at the U.S. Naval Base at Guantanamo Bay, Cuba, the Pentagon said Monday. A judge must first approve the charges against the suspects and the request the death penalty be considered, the military said Monday.

In an interview with CNN, Swift said the Office of Military Commissions has no attorneys who are "death-penalty-qualified currently assigned."

When he worked at the office, there were two lawyers assigned to a single death penalty defendant; now, he said, one lawyer has as many as three or four clients.

"There is no one to represent these detainees -- these high-value detainees," he said.

Cmdr. J.D. Gordon, a Defense Department spokesman for detainee issues, said the defendants will be "well represented" when their cases come before the judge.

"We're not looking at today," Gordon said. "We're looking at when charges are referred, which will be a couple of months from now."

"Once charges are referred by the convening authority, detailed defense counsel will be assigned," he said.

Gordon said he didn't know how many attorneys would be assigned to the six defendants, but all of those assigned "will be fully qualified."

About 500 lawyers currently represent the 275 detainees at Guantanamo Bay, he said.

"There will be many lawyers, and they will be well qualified," he said.

The military said Monday the detainees will have fair and adequate representation. In fact, "we are going to give them rights that are virtually identical to our military members," Air Force Brig Gen. Thomas Hartmann said at a Pentagon news conference.

But Swift said the procedures, as planned, could bring about a "nightmare scenario" in which alleged 9/11 mastermind Khalid Shaikh Mohammed -- the most prominent of the six detainees -- would be able to claim he had no fair trial in the United States, which could leave him looking like a martyr to his supporters.

Swift urged the military to change the plan, insisting the U.S. justice system can deliver a just verdict against an accused terrorist mastermind.

"Of course it can," he said.

There are also questions about whether testimony gathered through waterboarding would be considered as testimony, Swift said. The last legal precedent he could find for such a move, he said, was the Spanish Inquisition -- more than 500 years ago.

Hartmann said Monday a military judge will determine whether information obtained during interrogations is admissible. E-mail to a friend E-mail to a friend

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