The alleged mastermind of the Sept. 11 attacks and four other men suspected of playing a role in the attacks will be brought to New York to stand trial in a civilian court, Attorney General Eric Holder said Friday.
At a news conference, Holder said he anticipates seeking the death penalty against Khalid Sheikh Mohammed and four other suspects. Five additional terrorism suspects will be tried by military commissions, he said.
"After eight years of delay, those allegedly responsible for the attacks of Sept. 11 will finally face justice," Holder said. Those facing civilian trials will be brought "to a courthouse a few blocks away from the courthouse where the Twin Towers once stood," he added.
The four others are Walid bin-Atash, Ramzi Bin al-Shibh, Ali Abdul Aziz Ali and Mustafa al-Hawsawi.
The decision on how to handle these detainees comes just days before a deadline for the Justice Department to decide how it would prosecute a number of Guantanamo detainees awaiting trial. The prosecution of the alleged Sept. 11 attackers had started in a military commission at Guantanamo months ago. Then the Obama administration asked for a delay so that it could study whether to keep them in the military legal system or move them to civilian courts.
Now their trial will be conducted in a civilian court.
"This is clearly a vote of confidence in the criminal justice system to handle even the most delicate terrorism issues," said New York University law professor Sam Rascoff. "It is simultaneously a repudiation of the view that terrorists needed to be detained and tried in a parallel system that offered fewer rights and less transparency."
In his early days in office, President Obama vowed to close the Guantanamo Bay prison by January 2010. The president may not meet his own deadline. But moving high-visibility prisoners out of Cuba and to third countries or into the U.S. justice system signals that the administration is trying to make good on his promise.
Moving Prisoners To U.S. Courts
For some time now, civil liberties groups have been pushing for the Obama administration to prosecute Guantanamo detainees in the federal justice system. They maintain that prosecutions in the military-commission system ended up being something less than total justice because they see the rules governing the commission as favoring the prosecution.
The fact that the Sept. 11 suspects will end up in a New York court is not entirely surprising. The lead prosecutor for the military commissions, Capt. John Murphy, told reporters in September that four different U.S. attorneys' offices in New York, Washington and Virginia all wanted the opportunity to try the five.
Proponents of moving the suspects to U.S. courts point to the nearly 200 cases involving international terrorism that have gone through the criminal justice system here. Detractors have said that a federal court could have trouble handling classified evidence, foreign intelligence and evidence that was gathered during an armed conflict.
Former Attorney General Michael Mukasey has been an outspoken opponent of moving the trials into civilian federal courts. He has said the costs and security complications for such cases would be enormous. He said housing the alleged terrorists in the United States would threaten national security, and a public trial would compromise U.S. intelligence sources.
Why New York?
White House lawyers and a task force that has been advising President Obama and Attorney General Holder had made clear that they wanted to try the Guantanamo terrorism suspects in federal courts whenever possible. And New York's Southern District has more experience with trying sensitive terrorism cases than any other federal court in the U.S.
What's more, a grand jury in the Southern District has already indicted Mohammed for another terrorism plot. In 1996, he was implicated in a plan to explode 12 commercial jets over the Pacific Ocean. A federal grand jury in New York brought that indictment, and the Sept. 11 charges could be added to it. Prosecutors could also simply come up with a new indictment.
The Southern District of New York is already working on the case of another Guantanamo detainee. A Tanzanian named Ahmed Guilani has been charged in the 1998 East Africa embassy bombings. His trial is supposed to start next fall.
Challenges Ahead
The attorney general's decision will anger some members of Congress. Sens. Lindsey Graham, John McCain, James Webb and Joseph Lieberman had sponsored a measure that would block the Justice Department from spending any of its money on prosecuting suspects in the Sept. 11 attacks who are being held at Guantanamo. The opposition is bipartisan — Graham and McCain are Republicans, Webb is a Democrat and Lieberman is an independent.
But the Senate voted to table the measure after Defense Secretary Robert Gates and Holder wrote a letter a couple of weeks ago saying that the government needed the option of having trials by military commission or civilian courts.
Once the Justice Department announces where the suspects will be tried, they have to provide at least 45 days' notice to the states that will be involved. That could give people who are against moving the detainees here for trial some time to mobilize. Those notifications to the states haven't been made yet, so the 45-day clock hasn't started. Sources say the attorney general has talked to some of the relevant U.S. attorneys.
Even after the decision is final and Khalid Sheikh Mohammed's case is moved to the federal courts, many other serious questions will remain. How will the government show a jury classified terrorism-related evidence linked to the Sept. 11 attacks? Will the case become a referendum on harsh interrogation practices? Mohammed was waterboarded repeatedly while in custody. That will surely be one more issue to come before the court.
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