In an about-face on the day President Barack Obama announced his re-election bid, Attorney General Eric Holder on Monday ordered that confessed 9/11 mastermind Khalid Sheik Mohammed and four other alleged co-plotters stand trial before a military commission at Guantánamo Bay, Cuba, rather than in a civilian court.
It was an embarrassing reversal nearly a year and a half after Holder announced with much fanfare that the five men, who had been held for years in secret CIA custody before their transfer to the Guantánamo military prison in 2006, would be tried in a courtroom in lower Manhattan.
Holder blamed the decision on Congress for prohibiting the transfer of Guantánamo detainees to the U.S., even for trial.
“We must face a simple truth; those restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11attacks or for their family members who have waited nearly a decade for justice,” Holder said.
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The Sept. 11, 2001, attacks killed 2,976 people when four hijacked airliners crashed into the World Trade Center, the Pentagon and a field in southwest Pennsylvania.
Holder also revealed that a grand jury secretly indicted the five men on Dec. 14, 2009, alleging, among other things, that Mohammed had trained the hijackers “by killing sheep and camels” with short-bladed knives similar to the box cutters used in the 9/11 attacks.
That indictment, which was withdrawn Monday, came a year before Congress stepped in and blocked transfers of detainees to U.S. soil. But even before Congress acted, Holder said the Justice Department had delayed the transfer out of concern about security for a trial in Manhattan. At one time, he said, he considered staging the trial at the Otisville Federal Prison, 70 miles northwest of New York, near the Pennsylvania and New Jersey borders.
“The best venue for prosecution was in federal court,” he said. “I stand by that decision today.”
Families who lost relatives in the attacks offered mixed reviews of the decision. Most members of Congress endorsed it.
At the Pentagon, the chief war crimes prosecutor, Navy Capt. John F. Murphy, said his lawyers would prepare charge sheets “in the near future” against Mohammed, 45, Ramzi bin al-Shibh, 37, Walid bin Attash, 32, Ammar al-Baluchi, 32, and Mustafa Hawsawi, 41.
They have been held at Guantánamo since September 2006. The CIA subjected Mohammed to an interrogation technique called waterboarding 183 times. The five were charged in the military commission system during the George W. Bush presidency, but that case was dismissed in November 2009 when Holder announced plans for a civilian trial.
Murphy declined to say whether he would seek the death penalty — a key issue. Mohammed has said previously that he would confess to the plot and seek the death penalty as a fast track to martyrdom. But it is unclear whether a military judge who accepts a guilty plea can also sentence someone to death.
The timing of the announcement was surprising: the day President Barack Obama launched his campaign for re-election. It also came the day before the House Judiciary Committee was to hold a hearing on military commissions, at which relatives of 9/11 victims were expected to hold up pictures of their dead loved ones to protest administration policy.
“It is my hope that today's announcement means that long-delayed accountability will finally be served on the terrorists who killed thousands of Americans on 9/11,” said retired Navy Cmdr. Kirk Lippold, who was the captain of the USS Cole in October 2000 when an al-Qaida suicide bomber attacked the destroyer off Yemen, killing 17 U.S. sailors.
Lippold, an architect of Bush-era Guantánamo policy, accused the Obama administration of “political waffling” rather than “fortitude and leadership.”
The September 11th Families for Peaceful Tomorrows group said it was “profoundly disappointed” by “a step backward in our hopes that justice will be served.”
“The shame of Guantánamo will continue,” the group said in a prepared statement. “As families of those who were murdered on that day, we have waited nearly 10 years to see those who committed these savage criminal acts to be brought to justice.”
Reaction from Congress, which had voted to block a U.S. federal trial through funding bans, ranged from triumph to relief that New York would be spared the trial.
“As I have been saying all along, these terror trials belong in a military commission at Guantánamo. I am absolutely shocked that it took Attorney General Holder 507 days to come to this realization,” said Rep. Peter King, R-N.Y., chairman of the House Homeland Security Committee.
Sen. Lindsey Graham, R-S.C., who helped create the military commission system, said he appreciated Holder's decision to use it for the trials.
“Military commissions have been used in wars throughout our history, and they should be used in this war,” said Graham, a military lawyer who served in Iraq and Afghanistan. “The commission trials will be transparent, conducted by the same judges and jurors who administer justice to our own troops, and subject to civilian review. In addition, the military commissions system balances the interest of the accused with the safety of our nation as a whole in this time of war.”
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, lamented the reversal. He called the American justice system “the envy of the world” and with hundreds of terrorism convictions already “more than capable of trying high-profile terrorism and national security cases.”
“The record in military commissions pales in comparison, with only a handful of convictions, and the ground rules still in flux,” he said.
The decision resurrects a long-standing dispute over whether a military commission would be as fair as a civilian trial and whether its verdict would be as respected.
The National Association of Criminal Defense Lawyers worried that the military wouldn't provide adequate funding to hire civilian defense lawyers with death-penalty experience. The group also said the Obama administration hadn't gone far enough to ensure that the evidence used in a case would meet civilian court standards.
“Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said Norman Reimer, the group's executive director.
As a candidate and senator, Obama condemned the commissions. As president, he worked with Congress to reform them.
“It's devastating to the rule of law,” said Anthony Romero, executive director of the American Civil Liberties Union, blaming “politics” for the decision and arguing that the military commissions aren't capable of keeping out evidence gleaned from CIA interrogations, often under harsh conditions.
“The very Defense Department that enabled the torture is now going to be the adjudicator of justice,” he said.
Dean Boyd of the Justice Department countered that under Obama, “among the key reforms to the military commissions was a ban on the admissibility of statements obtained by the use of cruel, inhuman or degrading treatment.”
Holder also endorsed the commissions. “I believe they can deliver fair trials and just verdicts,” he said.
Rosenberg reports for the Miami Herald. James Rosen, Lesley Clark, Greg Gordon, Margaret Talev and Marisa Taylor contributed to this report.