The Obama administration is still deciding where to stage the 9/11 mass murder trials of five alleged co-conspirators now held at Guantánamo, the Defense Department’s top lawyer told Congress on Thursday.
Pentagon General Counsel Jeh Johnson urged the House Armed Services Committee to allow both civilian courts as well as military commissions to prosecute the detainees at the U.S. Navy base in southeast Cuba.
“Let’s not take options away from the military and the national security apparatus,” he said, cautioning that a draft Republican bill designed to block federal trials would make it more likely that courts would step in when detainees challenge their detentions.
The committee chairman, Rep. Buck McKeon, R-Calif., called the hearing to examine a White House plan for periodic reviews on whether and how to release the last 172 captives at Guantánamo, including the four dozen men whom the Obama administration wants to hold indefinitely without ever facing a trial.
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But the focus was the Republican draft legislation that would further thwart Obama’s efforts to close the detention center in southeast Cuba. It also would give the defense secretary rather than the attorney general final say on keeping a detainee in military custody. The bill imposes such tough requirements on transfers of the last Guantánamo captives that Defense Secretary Robert Gates has said he might not be able to approve any release.
“They turn Guantánamo Bay into the Hotel California,” said the top Democrat on the committee, Washington Rep. Adam Smith. “You can check out any time you want but you can never leave.”
McKeon replied later in the hearing that his draft “was the start of the process” and that he expected bipartisan work to refine it.
Freshman South Florida Rep. Allen West, a Republican, offered some of the most lively questioning of the session, at one point trying to engage the Pentagon lawyer on Congress’ Authorization for the Use Military of Force. It was adopted soon after the 9/11 attacks, when West was a U.S. Army infantry officer.
West wondered whether the language covered all terrorists or just members of al Qaeda. What if al Qaeda rebranded itself “The Bombay Bicycle Boy’s Club,” he asked.
Johnson replied that he hoped U.S. intelligence was robust enough to detect the name change.
Several other Republicans questioned Johnson and Deputy Defense Secretary William Lynn closely on the proposed prosecutions of five men now held at Guantánamo as conspirators in the Sept.11, 2001 mass murder.
The Bush administration had planned a military commission, seeking to execute all five, notably Khalid Sheik Mohammed, who bragged soon after the CIA released him to the military in 2006 that he was the 9/11 mastermind.
But Attorney General Eric Holder decided they should face federal trials in New York, not far from the site where the World Trade Center once stood.
Lynn said in response to a question that he believed it was up to the Executive Branch of government — not Congress — to decide what kind of trial each Guantánamo captive might get. Johnson said that the Obama administration was still “divvying up” the prosecutable Guantánamo captives between civilian and military courts.
Johnson testified that no choice had been made for the 9/11 case. Still, one member of Congress instructed the Pentagon lawyer to draw up a list of which lawyers would prosecute the case were it to proceed at a Guantánamo military commission.