The official tasked with running the Guantanamo military tribunals has rejected a prosecution recommendation to drop one of the counts faced by several detainees charged in the September 11, 2001 attacks, the Pentagon said Friday.
Brigadier General Mark Martins had asked the Pentagon authority overseeing the trial to drop the charge of conspiracy, while keeping intact other counts against the defendants accused in the murders of nearly 3,000 people in New York, Washington and Pennsylvania.
But the request was rejected by the Convening Authority tasked with oversight of the US military prison based in Cuba.
"In declining to withdraw the conspiracy charge, the Convening Authority noted that dismissal at this time would be premature, as the viability of conspiracy as a chargeable offense in trials by military commission is still pending appellate review," a Pentagon statement said.
The Convening Authority -- an official unique to military court -- sets the charges, authorizes the death penalty, determines the amount of funding to be given to the defense and picks the panel of military officers to decide the case.
Martins had said his move seeking a dismissal of the conspiracy charge was triggered by an appeals court ruling back in October that threw out the conviction of late Al-Qaeda chief Osama bin Laden's former driver Salim Hamdan.
The US Court of Appeals in Washington ruled that a 2006 law that listed material support for terrorism as a war crime could not apply to Hamdan retroactively.
The appellate court ruled that the material support charge was not "an international-law war crime" at the time Hamdan engaged in the behavior in question.
Hamdan, bin Laden's former driver and bodyguard, completed his prison sentence and was sent back to his native Yemen before the decision overturning his conviction was announced.
Defense attorneys slammed Friday's Pentagon ruling, and questioned the impartiality of the Convening Authority.
"The Convening Authority's attempt to drive the prosecution forward shows that the military commission structure is fundamentally unfair," said James Connell, attorney for Ammar al-Baluchi, one of the accused.
"The defense has challenged the neutrality of the Convening Authority in a motion scheduled to be heard in February," Connell said.
Khalid Sheikh Mohammed, the self-proclaimed mastermind of the attacks, and his four alleged co-plotters stand accused of eight charges in connection with the 9/11 attacks.
In addition to conspiracy, the defendants are also charged with attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking aircraft, intentionally causing serious bodily injury, and terrorism.
The next hearing for the alleged 9/11 co-plotters, who face the death penalty, is set to begin January 28 at Guantanamo and is expected to include examination of a defense appeal linked to the location of secret CIA prisons.