They were held at secret prisons by the CIA and were subjected to what have been called “enhanced interrogation techniques” before they were transferred to Guantanamo Bay.
Military prosecutors, like their federal counterparts, think they can secure convictions without relying on coerced statements made to the CIA, and Holder said he has “full faith and confidence in the military-commission system to appropriately handle this case as it proceeds.”
But military defense lawyers think their clients’ treatment by the CIA will still be a critical factor mitigating against death sentences, and they plan to try to introduce as much evidence of abuse as possible.
Another unresolved key question is whether Mohammed and the others can plead guilty and receive the death penalty, something they appeared interested in doing just before Obama suspended military commissions.
In December 2008, the five sent a document to the military judge overseeing their case to “announce our confessions and plea in full.” But the judge, Army Col. Stephen R. Henley, said he wanted a briefing from the prosecution and a defense response on whether he could accept guilty pleas in a death penalty case under the language of the Military Commissions Act, which suggests that a death penalty can arise only from a decision by a military jury.
“Are you saying if we plead guilty we will not be able to be sentenced to death?” Mohammed asked at the time, before withdrawing the offer.
Rep. Howard P. “Buck” McKeon (R-
Calif.) has introduced legislation that would allow a military judge to accept a guilty plea to capital charges and then sentence the defendants to death.
Murphy, the chief military prosecutor, said: “It would be inappropriate to speculate on what specific charges may be sworn or if . . . prosecutors will seek the death penalty.”
Holder first announced in November 2009 the planned prosecution of Mohammed and his co-defendants in federal court in New York. The decision was the culmination of an almost year-long examination of the
cases of every Guantanamo Bay detainee.
But the announcement triggered almost immediate opposition from congressional Republicans, who said the attacks on New York and Washington were acts of war, not ordinary crimes, and should be prosecuted in a military tribunal.
New York Mayor Michael R. Bloomberg (I) initially supported the prosecution, but that backing faltered when fears were raised of major disruption in the life of the city and when the New York Police Department said it would cost hundreds of millions of dollars to secure Lower Manhattan.
The administration quietly shelved its plans while insisting that it was still committed to federal trials for some Guantanamo Bay detainees. Through much of the past year, the 9/11 case and other potential prosecutions of Guantanamo Bay detainees have been in limbo.
Federal law enforcement officials said the decision not to hold civilian trials was considered inevitable within the Justice Department once Congress barred the transfer of Guantanamo Bay detainees to the United States for any reason, including prosecution, which previously was possible.
“It’s fair to say that was the final nail in the coffin,’’ said one source familiar with the case, who spoke on the condition of anonymity to discuss internal deliberations. “It was just never, never going to happen.’’
Other sources said the decision had been in the works for some time before Monday but was closely held. Asked why it took four months after Congress passed the legislation, one official said: “The government is a big battleship, and it takes a while to turn it around. I wouldn’t read anything more into it than that.’’
Staff writers Jerry Markon and William Branigin and staff researcher Julie Tate contributed to this report.
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