Setting the stage for a historic criminal trial, Attorney General Eric H. Holder Jr. announced Friday that the government would prosecute the self-proclaimed architect of the Sept. 11, 2001 attacks and four others in a civilian courthouse just blocks from the scene of their alleged crimes.
Americans — especially the victims and family members of those who perished in the suicide hijackings — “deserve the opportunity to see the alleged plotters of those attacks held accountable in court,” Holder said. “After eight years of delay, those allegedly responsible … will finally face justice.” He said he expected prosecutors to seek the death penalty.
Holder’s decision raised a raft of legal, political and ethical questions, including what kind of evidence will be used against men whom the U.S. government subjected to brutal interrogation methods. In the case of alleged plot mastermind Khalid Sheikh Mohammed, the CIA has acknowledged using a simulated drowning technique known as waterboarding, which many legal experts have said is torture.
“There could be all kinds of problems with the evidence. Some of it might be linked to waterboarding. Other evidence may have come from intelligence-gathering overseas,” said Matthew Waxman, a Columbia University law professor who served as a top Pentagon lawyer in the Bush administration.
“That said, the government would not be moving forward if they were not confident they can prove their case” with untainted evidence, Waxman said.
And the trial almost certainly would turn into a propaganda forum for the accused terrorists, Waxman said. “We hold our trials in the open, and that gives defendants an opportunity to spew propaganda,” he said. “They will try to the put the U.S. government on trial.”
Holder’s long-awaited decision drew praise from some and harsh condemnation from others, including key Republicans in Congress.
“It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered,” New York Mayor Michael R. Bloomberg said.
Some survivors and family members of the nearly 2,900 people who died that morning — in New York, at the Pentagon and in a field in Pennsylvania — also welcomed the news. Several indicated that they wanted to witness in person the trials of Mohammed and the other alleged al-Qaida operatives whom Holder said soon would be indicted for their key roles in the attacks.
Others shared the concerns of some legal experts that such a public trial would give Mohammed and his alleged associates a very public soapbox to exhort sympathizers to join in their jihad, or holy war, against the United States.
Debra Burlingame, whose brother piloted one of the hijacked planes, said she also feared that a public trial might result in the attacks being overshadowed by details of alleged CIA torture and by “the prospect of these barbarians being turned into victims by their attorneys.”
Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, said holding the terrorism trials in civilian court could result in acquittals, mistrials or shorter sentences. He vowed that Republicans would redouble their recent efforts to block the proceedings through a congressional vote.
But Holder, who called this the toughest decision he has had to make as attorney general, said he believed the suspects would be convicted based on evidence that would be allowed at trial — including “information that has not been publicly released.”
“I am confident,” Holder said, “in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years.”
To the extent that there are political consequences, the attorney general said, “Well, you know, I’ll just have to take my lumps.”
President Barack Obama, traveling in Japan Friday, said he was “absolutely convinced that Khalid Sheikh Mohammed will be subjected to the most exacting demands of justice.”
The five detainees — including two alleged top aides to Mohammed, his nephew and an al-Qaida paymaster — had been facing trial before military commissions at the U.S. naval base in Guantanamo Bay, Cuba, before the Obama administration said it wanted to reassess the way the United States treated and tried terrorism suspects.
Holder said five other al-Qaida suspects also in Guantanamo would face military tribunals, including Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 attack on the U.S. destroyer Cole in a Yemen harbor that killed 17 sailors.
Lawyers for the five alleged Sept. 11 conspirators said they had no comment on how the men would plead once they are charged by federal prosecutors. Holder said that would occur as soon as possible under all applicable laws, including one that requires at least 45 days’ notice to Congress before prisoner transfer from Guantanamo.
While some legal experts had predicted Mohammed and his alleged conspirators would be charged for other offenses, Holder said they would be prosecuted for the 2001 strikes that launched America’s war on terror and, in many ways, defined the course of Bush’s presidency.
“They will be charged for what we believe they did,” Holder said, “and that is to mastermind and carry out the 9/11 attacks.”
During pre-trial appearances, Mohammed said he wanted to plead guilty and was accused of trying to unduly influence his alleged accomplices into doing so. That raises questions about whether he and Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali will do the same in civilian court.
The detainees are expected to be held at the same federal prison in New York that housed other suspected al-Qaida operatives before trials related to the 1993 World Trade Center bombing, the Africa embassy bombings and other terrorist plots. Virtually all of those men were convicted in trials marked by heavy security and now are serving long sentences in federal prisons around the United States.
Unlike those prosecutions, these trials may face significant political opposition. But Sen. Patrick J. Leahy of Vermont, chairman of the Judiciary Committee, was one of many Democrats ready to fight that effort.
“By trying them in our federal courts,” Leahy said, “we demonstrate to the world that the most powerful nation on Earth also trusts its judicial system.”
Holder and other Justice and Pentagon officials said they had not decided where the military commissions would be held but that decisions on that and other Guantanamo issues would be coming soon. The other detainees slated to appear before military commissions are Ahmed Mohammed al-Darbi, Omar Khadr, Ibrahim Ahmed Mahmoud al-Qosi and Noor Uthman Muhammed.
Holder said he had decided to keep the five before military commissions in part because the attacks had occurred overseas and against military targets.
Some critics said that undermined the Obama administration’s plans to dismantle not only Guantanamo but the commissions themselves, which have become the subject of international scorn and criticism.
One of the administration officials who played a prominent role trying to resolve the future of the Guantanamo detainees, White House counsel Greg Craig, announced his resignation Friday. He will be replaced by Bob Bauer, who served as Obama’s campaign lawyer.
(c) 2009, Tribune Co. Source: McClatchy-Tribune Information Services.