Prosecutor Says Sept. 11 Suspects Can Be Held Past War Crimes Sentence

Regardless of the outcome of their someday trial, the men accused of plotting the attacks of Sept. 11, 2001, can be held forever as prisoners in the war against terrorism in a form of preventive detention, a military prosecutor told the presiding judge on Wednesday.

Defense lawyers were asking the judge to rule that, if convicted, Mustafa al-Hawsawi, one of the suspects in plotting the attack, would have any sentence to a term of confinement reduced by the number of days he was held by the United States before trial. He has been held since 2003.

The argument, in a pretrial hearing in the decade-old Sept. 11 case, was the latest installment over a long-running, unresolved question of whether a prisoner, once he completes a war crimes sentence, is entitled to release from military detention.

Col. Joshua S. Bearden, an Army prosecutor, said the answer was no. He urged the judge to reject the request as both premature, because the government is seeking the death penalty in the case, and beyond the scope of his authority.

No date has been set for the start of the trial of the four men accused of conspiring in the commercial airliner hijackings that killed nearly 3,000 people on Sept. 11, 2001.

Mr. Hawsawi has been held for the past 20 years but not as punishment or exclusively for trial, Colonel Bearden said. The prosecutor said the charges against Mr. Hawsawi were separate from the detention that keeps him “off the battlefield” in the U.S. war with Al Qaeda.

Mr. Hawsawi is accused of helping some of the hijackers with finances and travel arrangements from the United Arab Emirates on behalf of Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 plot. The two men were captured together on March 1, 2003, in a raid on a house in Rawalpindi, Pakistan.

“Make no mistake about it,” Colonel Bearden said. “The conflict is still going on. Hostilities still exist.”

Sean M. Gleason, a lawyer for Mr. Hawsawi, a Saudi national, argued that his client was in pretrial detention from the moment of his capture because the United States had already issued an arrest warrant for him and prepared a secret indictment against him. By that measure, he said, the prisoner was so far entitled to 253 months of sentencing credit.

Mr. Hawsawi’s lawyers wrote in their brief that even though “the death penalty lurks as a potential sentence,” that should not prevent the judge from granting relief “that would open the door to a different sentence.”

His lawyers have separately asked the judge to dismiss the case because of Mr. Hawsawi’s torture in U.S. custody.

Defense lawyers for the suspects raised the issue as a pretrial matter, arguing that military commissions defendants should be entitled to sentencing credit just like other U.S. military or criminal defendants.

In 2010, the Pentagon added a rule to the Manual for Military Commissions specifically stripping war crimes judges of the right to award such credit. But Mr. Gleason argued that Congress never included that provision in the various laws that created military commissions, and so his right to credit was essentially retroactive.

The judge, Col. Matthew N. McCall, did not ask questions on Wednesday about the overarching preventive detention doctrine. But he asked why one “criminal process” should not be “run like any other criminal process.”

“They are law of war detainees forever, until the hostilities have ceased,” Colonel Bearden replied.

James G. Connell III, representing another defendant, Ammar al-Baluchi, has similarly sought sentencing credit. Mr. Connell argued that a defendant, especially when he considers whether to plead guilty to a crime, should know how much credit he would receive for time served.

Mr. Connell also disputed the prosecutor’s characterization of Mr. Baluchi as a “law of war detainee” in his first years in the C.I.A.’s secret overseas prison network, known as black sites. Prisoners held under the law of war are entitled to visits from delegates of the International Committee of the Red Cross, he said. The Sept. 11 suspects were captured in 2002 and 2003 but were not allowed to meet Red Cross representatives until October 2006, a month after their transfer to Guantánamo Bay.

Of the 30 detainees at Guantánamo Bay, 11 have been tried or convicted; 16 have been approved for transfer to other countries, with security arrangements; and three are indefinite detainees without charge or trial being held under that doctrine as prisoners of the forever war against terrorism.