In a rare display of agreement between advocates who have spent years in fierce opposition, the American Civil Liberties Union yesterday paid tribute to the Department of Justice for its decision to try five of the alleged planners of the 9/11 terrorist attacks in a civilian federal court.
In a teleconference for reporters, the ACLU’s executive director, Anthony Romero, said the decision to bring Khalid Shaikh Mohammed and four other alleged 9/11 plotters to federal court in New York City “is an enormous victory for the rule of law.” Mohammed, known as KSM, is the self-described mastermind of the terrorist attacks.
Attorney General Eric H. Holder Jr. announced the decision at a news conference Friday at the Department of Justice in Washington. He said it was the most difficult decision he has had to make since becoming attorney general after the inauguration of President Barack Obama in January
Holder also announced that the administration will use military commissions to prosecute other high-profile detainees now being held at Guantánamo Bay, Cuba. These include Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the Navy destroyer Cole in Yemen.
Where to prosecute Mohammed and al-Nashiri has been particularly problematic for the Obama Administration, since it is now widely known that both men were waterboarded multiple times while being held in secret prisons run by the Central Intelligence Agency.
But legal authorities consulted appeared to agree that the Justice Department must have a high degree of confidence in the strength of these cases, even though one of the central issues will be admission of evidence obtained through torture. Holder said the DOJ has substantial evidence not yet made public and, presumably, not obtained through coercion.
Mohammed has admitted to interrogators that he was the mastermind of the 9/11 attacks. He allegedly proposed the concept to Osama bin Laden as early as 1996, obtained funding for the attacks from Mr. bin Laden, oversaw the operation and trained the hijackers in Afghanistan and Pakistan. He was born in Pakistan’s Baluchistan province and raised in Kuwait. He also has been charged in a 1995 terror plot to bomb or hijack 11 US-bound flights originating in Asian countries. He was arrested March 1, 2003, during a raid by Pakistani officials in Rawalpindi, a city outside Islamabad.
Others to be tried in federal court are Ramzi Binalshibh, Walid bin Attash, Mustafa al-Hawsawi and Ali Abdul Aziz Ali, also known as Amar al-Baluchi. The Bush administration filed charges against the men last year before a military commission, asserting that it would be difficult to successfully prosecute the men in federal court in part because that might force the US government to disclose and defend the prisoners’ treatment in CIA custody.
The cases to be tried before military commissions will be required to meet a lower threshold of evidence and presumably make convictions easier to obtain. President Barack Obama last week signed amendments to the Military Commissions Act of 2006 designed to make the commission process fairer and more transparent. However, human rights advocates have said it remains a deeply flawed system of justice.
The ACLU’s Romero said, “It’s disappointing that the administration has chosen to prosecute some Guantánamo detainees in the unsalvageable military commissions system. Time and again the federal courts have proven themselves capable of handling terrorism cases while protecting both American values and sensitive national security information. Justice can only be served in our tried and true courts.”
Other critics of President Obama’s changes to the regulations governing military commissions are characterizing these changes as “cosmetic improvements,” amid a growing consensus among human rights organizations that these tribunals are designed to produce convictions while trials in civilian courts are far more likely to produce justice.
Among critics of the military commission system, the views of Lt. Col. David Frakt are typical. A former military defense counsel to a Guantanamo detainee, he told Truthout, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt concluded that “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.”
Holder said that among those to be prosecuted before military commissions is Omar Khadr, a Canadian-born terror suspect who has been imprisoned at Guantananmo Bay since 2002. Snatched by US soldiers following a firefight in Afghanistan, Khadr faces five war crimes charges under the military commissions system, the main one being murder as a war crime in the death of a US serviceman from a grenade attack.
The attorney general’s announcement came as Khadr’s lawyers argued before the Canadian Supreme Court that he should he repatriated to Canada primarily on grounds he was only 15 at the time of the alleged offences.
Holder said he “expected” prosecutors to seek the death penalty in all five cases should convictions be achieved. But trials of the “9/11 Five” in New York are months away. First, Congress requires a 45-day notice before any Guantanamo detainees can be brought to the US While the defendants have been charged under military law, they still need to be indicted to stand trial in federal court. Finally, there will undoubtedly be months of pre-trial motions by defense attorneys.
Holder did not respond to a reporter’s question regarding what the government would do if a defendant were to be acquitted. But on previous occasions, he has talked about continued detention. He has also referred to a plan for “preventive detention” for terror suspects who cannot be tried but who are deemed too dangerous to release.
Since the Obama Administration still plans to close Guantanamo altogether, the detainees now held there will probably be housed in secure prisons in the US – over the objections of members of congress from both parties, who have warned of “terrorists walking the streets of our town.”
The administration is continuing its efforts to find countries prepared to accept prisoners who are no longer deemed to be dangerous, but it now seems unlikely that it will be able to meet its deadline of closing Guantanamo by January.
Reaction to Holder’s announcement came quickly. President Obama, on a trip to Japan, said in Tokyo: “This is a prosecutorial decision as well as a national security decision. Here’s the thing that I will say: I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice. The American people will insist on it and my administration will insist on it.”
Congressman Jerrold Nadler, a New York Democrat who represents the district in which the World Trade Centers were located, applauded “the decision to bring those individuals responsible for the attack on the World Trade Center to New York to face trial in our federal courts. New York is not afraid of terrorists, we want to confront them, we want to bring them to justice, and we want to hold them accountable for their despicable actions.”
In a statement, he said, “It is fitting that they be tried in New York, where the attack took place. On that day almost 3,000 innocent men, women, and children were murdered, and New York has waited far too long for the opportunity to hold these terrorists responsible. We have handled terrorist trials before, and we welcome this opportunity to do so again. Any suggestion that our prosecutors and our law enforcement personnel are not up to the task of safely holding and successfully prosecuting terrorists on American soil is insulting and untrue. I invite any of my colleagues who say that they are afraid to bring detainees into the United States to face trial to come to New York and see how we handle them.”
But Holder’s announcement was also greeted by strong criticism. House Republican Leader John Boehner of Ohio said, “This decision is further
evidence that the White House is reverting to a dangerous pre-9/11 mentality — treating terrorism as a law enforcement issue and hoping for the best. We need a real strategy for fighting and winning the war on America’s terrorist enemies that includes an effective, credible, and consistent plan for all terrorist detainees.”
US Senate Republican Leader Mitch McConnell said, “This misguided decision is based on the false belief that the terrorists who killed 3,000 Americans in one day on US soil are common criminals — not war criminals. But there are needless risks from this decision: classified information can be inadvertently leaked, as it was in the first World Trade Center trial; our cities will face enormous security problems; and our communities will be potential targets for attack.”
And Connecticut Sen. Joe Lieberman, an Independent, said, “The terrorists who planned, participated in, and aided the Sept. 11, 2001 attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts. [They] should therefore be tried by military commission rather than in civilian courts in the United States.”
During the administration of President George W. Bush, Guantanamo became a worldwide symbol of US lawlessness and brutality in the treatment of prisoners. The system of justice set up there was rejected by the US Supreme Court multiple times. Many of the unlawful acts committed at Guantanamo were later found at Abu Ghraib prison in Iraq, at Bagram Air Base in Afghanistan, and in other US detention facilities. Despite multiple military investigations, no senior American was ever charged or convicted of wrongdoing.
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