The five men accused of plotting the 9/11 attacks will now face seven charges instead of eight, after the chief prosecutor yesterday moved to withdraw a conspiracy charge that he believed might not hold up on appeal. Khalid Sheikh Mohammed and four co-defendants still face charges that include just shy of 3,000 counts of murder, so the change won't reduce the potential sentence—death—that they'll get if convicted. But the dismissal is notable in the "legal flaw" it reveals, reports the Wall Street Journal.
The key issue is that military tribunals' jurisdiction doesn't extend beyond war crimes. Other recent convictions (including the August 2008 conviction of Osama bin Laden's former driver for providing material support to terrorism) have been overturned upon appeal because the charge wasn't considered a war crime under the standards of international law when it occurred. And that could put other Gitmo cases at risk. The Journal notes that a number of "lower-profile" Guantanamo inmates were charged with conspiracy because it's fairly easy to prove, and because there's a dearth of evidence linking many of them to a particular attack. The Obama administration is considering an appeal of the appeals court ruling in the aforementioned case.