U.S. plan for Guantánamo prison camp detainees: Divide and conquer
01/25/2009 3:00 AM
07/30/2013 5:26 PM
Khalid Sheik Mohammed, alleged 9/11 mastermind, could be coming to a lockup in America. Not today, not tomorrow, but soon.
President Barack Obama's order to empty the U.S. prison camps in Cuba is designed to avoid a Guantánamo North on American soil by scattering the 245 detainees between federal trials and shipping some overseas by this time next year.
The order doesn't rule out new military commissions at domestic bases.
To achieve the president's goal, the Cabinet-level task force weighing the options must determine whether intelligence should be declassified for criminal trials on U.S. soil.
The order encourages trial in federal courts as an alternative to the war crimes tribunals that were suspended last week. The plan could spread the detainees around, rather than consolidate them in one place.
Under one widely considered scenario, the Justice Department would assign some of the war crimes cases to federal prosecutors in New York and near Washington, D.C. -- and move those men first to the United States.
Prime candidates are Mohammed, who already is under indictment in New York, since 1996, for an ill-fated plot to bomb U.S. airliners in Manila, and Ahmed Ghailani, also indicted there in the 1998 East Africa embassy bombings. Both men are at Guantánamo, where they have been charged with war crimes.
The president's order, signed Thursday, ''does not eliminate or extinguish the military commissions. It just stays all proceedings,'' one senior administration lawyer told reporters Thursday, leaving open the possibility that a modified war crimes court could be set up at a military base.
Of the 245 detainees now at Guantánamo, 21 are accused of war crimes. But it is not clear how many could be charged in the federal court system, a process that could move them out in stages and spread them around the nation. Some analysts have pointed to New York and Virginia as possible locations for federal trials. But administration officials said Friday that it is too early to say who might face trial, or where.
''All the relevant agencies will first have to conduct a thorough review to determine the best available option for addressing each individual,'' Justice Department spokesman Dean Boyd said.
If found guilty, federal convicts could join other terrorists at a ''supermax'' in Florence, Colo. ''Unabomber'' Theodore Kaczynski, 1993 World Trade Center bombing mastermind Ramzi Yousef and 1996 Atlanta Olympic Park bomber Eric Rudolph are all there.
People being charged could be transferred to federal lockups. José Padilla, now in Florence, was held on terrorism charges for two years in a federal lockup in downtown Miami -- after President George W. Bush ordered his transfer from the Charleston, S.C., Navy brig to stand trial.
But Republican leaders conjured up frightening images of a wholesale transfer of all 245 to one site. Or of unwise releases that could put America at risk -- stoked by a fresh report Friday that a Saudi man, sent home from Guantánamo in 2007, had emerged as a leader of an al Qaeda cell with suspected links to a deadly bombing at a U.S. Embassy in Yemen.
''Most families neither want nor need hundreds of terrorists seeking to kill Americans in their communities,'' said Republican Rep. Eric Cantor of Virginia.
''Kansas is no place for enemy combatants or terrorists,'' said Sen. Sam Brownback, who has campaigned fiercely against moving Guantánamo detainees to Fort Leavenworth in his state, where the U.S. military holds criminal soldiers and which has a Death Row.
Other ideas floated at times include using the brig at Camp Pendleton, Calif., or building a new maximum-security prison, perhaps at Fort Huachuca in Arizona.
If so, someone would have to decide whether to move Guantánamo's Army-Navy guard force or and turn to the Federal Bureau of Prisons.
Meantime, the president's order does not rule out new and improved military commissions or creating a special security court for those who couldn't be convicted in federal court.
Former Clinton administration U.S. Attorney Mary Jo White, whose New York office prosecuted and won the al Qaeda terrorism cases of the 1990s, favors tribunals.
''Masked by the fact that we won them all,'' she said, ``was that they were excruciatingly difficult to do.'' Prosecutors have an obligation to provide discovery -- all evidence favorable and not so much so -- to defense attorneys, who in turn share it with their client and could make it public.
Release of every intelligence morsel must be screened through a separate national security filter, addressing whether disclosure could endanger national security. Intelligence agencies don't want to divulge their sources, saying they could jeopardize ongoing terrorism investigations.
And that was true long before the capture of Mohammed and at least two other Guantánamo detainees, whom the CIA waterboarded and subjected to other harsh interrogations at an undisclosed location.
At issue is whether evidence taken through the technique known as water torture would ''shock the conscience'' of a federal judge, a legal concept that can cause evidence and sometimes whole cases to be thrown out.
Once at Guantánamo, FBI and other so-called clean teams interrogated the same men and reportedly got confessions without duress. But there is another legal principle called the fruit of the poison tree, meaning that evidence taken after abuse is tainted.
So, for Mohammed to face a criminal trial, prosecutors must decide for which crimes, at which court. He already is on trial in Paris for allegedly ordering the 2002 bombing of an ancient synagogue in Djerba, Tunisia, in which 14 German tourists and seven others died.
One model may be the 2007 terrorism conspiracy conviction in Miami of Padilla, whom President Bush had designated as an ''enemy combatant.'' Interrogators subjected him to sleep deprivation and other rough techniques to learn what he knew of an alleged dirty-bomb plot.
So, federal prosecutors built his case on evidence obtained before his capture, and before 9/11, never alleging the plot.
''There's no right answer, in my point of view. You're never going to satisfy any of the critics,'' ex-prosecutor White said last month. ``We've sort of damaged our credibility to do anything except go to the federal civilian courts.'' So the filter for federal prosecutions is an examination of ''the evidence,'' White said. ``Is it usable and admissible?''
That is especially so for those captured by U.S. forces in Afghanistan. ''Would you be able to find the soldier who arrested them on the field?'' said a Justice Department official, commenting on background because no one has yet been put in charge of the Guantánamo review process there. ``Did they actually get the shell cases on the ground and get them back to the FBI crime lab?''
Some of these issues were just being raised at Toronto-born Omar Khadr's military commission at Guantánamo, now suspended until May 20. He allegedly threw a grenade in a July 2002 firefight in Afghanistan that killed a U.S. soldier. Khadr was 15.
Wherever the court may be, there is also the question of how to prevent alleged terrorists -- who have declared their rejection of any American law -- from using their trials as al Qaeda recruiting tools, or political platforms. Moussaoui at times served as his own attorney, offered an incoherent defense, then was stunned when a civilian jury spared him the death sentence. So much so that he wrote to Judge Leonie Brinkema, requesting a do-over. The motion was denied.
Confessed al Qaeda kingpin Mohammed and some of his alleged co-conspirators used their Guantánamo hearings to celebrate Osama bin Laden, jihad and martyrdom.
The 1990s trials of Ramzi Yousef and others for the 1993 World Trade Center bombing were a balancing act, said White, of what intelligence bits could be divulged, even before Yousef won the right to defend himself.
''One of the most riveting experiences of my career -- and frightening, quite frankly -- was watching how good he was,'' she recalled. ``He was really, really good.''