In an abrupt reversal, US Attorney General Eric Holder has decided that alleged 9/11 mastermind Khalid Sheikh Mohammed will not be tried in a civilian federal court in the US, but instead will face justice before a special military tribunal at Guantánamo Bay.
Mr. Holder made the announcement in a press conference in Washington on Monday, the same day the president announced his reelection campaign.
Holder spoke with a tone of resignation, acknowledging that the administration’s hands had been effectively tied by members of Congress opposed to any transfer of Guantánamo detainees to the US.
“Sadly, this case has been marked by needless controversy since the beginning,” Holder said. “The prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points.”
In November 2009, Holder conducted a similar press conference to announce that Mr. Mohammed and four co-conspirators would be tried in a federal court in New York City. But the Obama administration faced substantial pushback from citizens and leaders in New York who were concerned that a major terror trial might spark a new round of deadly attacks.
Holder said he studied other options, including conducting the trial at a federal prison outside New York City. But new restrictions by Congress made even that proposal a dead letter.
“While we will continue to seek to repeal those restrictions, we cannot allow a trial to be further delayed for the victims of the 9/11 attacks or their families,” he said.
“I have full faith and confidence in the reformed military commission system to appropriately handle this case as it proceeds,” he said.
Praise and criticism
Holder’s switch drew immediate praise from Republicans in Congress.
“This is the right outcome to the long and spirited debate that preceded this decision,” said Senate Republican leader Mitch McConnell in a statement on the Senate floor. “Military commissions at Guantánamo, far from the US mainland, were always the right idea.”
Human rights and civil liberties groups who had earlier praised Holder for his decision to conduct the terror trial in a civilian court in New York City, blasted the attorney general’s reversal as a setback for rule of law.
Some said the decision was “purely political,” driven by the unpopularity among Americans of the Guantánamo detainee issue. Others said it would erode US standing internationally.
“Any trial in the military commission system will carry the stigma of Guantánamo, be subject to challenge and delay, and keep the world focused on how the defendants were treated rather than the crimes they are accused of committing,” said Andrea Prasow, senior counterterrorism counsel with Human Rights Watch, in a statement.
She added: “A verdict in the federal court system, in contrast, would be recognized throughout the world as legitimate.”
Holder's faith in civilian courts
As part of the Justice Department’s referral of the case, prosecutors asked a federal judge on Monday to unseal and dismiss a 10-count, 80-page indictment against Mohammed and four alleged codefendants. The indictment had been returned by a federal grand jury in New York in December 2009.
It charged Mohammed as the mastermind and Al Qaeda’s operational leader of the 9/11 plot. The charges included terror conspiracy, destruction of aircraft, aircraft piracy, and murder of US officers and employees.
The indictment identifies Mohammed and the four other defendants as being involvement in the destruction of the World Trade Center towers, destruction of four aircraft, the attack on the Pentagon, and the deaths of 2,976 persons.
Holder said he still believed the best venue for the 9/11 terror trial was a civilian federal courtroom. He said he stood by his earlier decision to conduct the trial in New York City.
In earlier comments Holder had made no secret of his concern about entrusting such a high-profile case to the still largely untested military commission process at Guantánamo.
After nearly a decade of on-again, off-again proceedings, new legislation, and Supreme Court rulings, the military commission system has yielded only a handful of guilty pleas and convictions. The attorney general said he is not sure the military commission system would permit the death penalty for a defendant who pleads guilty.
Are military tribunals up to the task?
Holder emphasized that the Obama administration had worked with Congress to refine military commission procedures at Guantámamo. But some legal analysts say the procedures still lack the legitimacy of the federal court system.
“The Obama administration’s decision to use the broken and deficient military commissions system to prosecute the most important terrorism cases of our time is completely wrong,” American Civil Liberties Union Executive Director Anthony Romero said in a statement.
“There is a reason this system is condemned,” he said. “It is rife with constitutional and procedural problems and undermines the fundamental American values that have made us a model throughout the world.”
Tom Parker of Amnesty international called the administration’s switch “another shameful political compromise by the Obama administration.”
“President Obama came into office pledging to restore America’s reputation by closing the detention facility at Guantánamo and doing away with the widely discredited kangaroo court system cobbled together by the Bush administration,” Mr. Parker said. “That pledge finally was resoundingly revoked today.”
Mr. Bin Attash is accused of gathering information on airport and airplane security for the Al-Qaeda plot. Mr. Bin Al-Shibh is alleged to have sent money to the hijackers. He was initially tapped to serve as a pilot, but was unable to obtain a visa to enter the US, according to prosecutors.
Mr. Ali is accused of sending money to the hijackers. Mr. Al-Hawsawi allegedly helped facilitate the hijackers' travel to the US.