|Page 2 of 2 <|
Alleged Sept. 11 planner will be tried in New York
The administration is required to give Congress 45 days' notice of its intent to transfer detainees so that the Sept. 11 defendants will not be immediately moved to the United States.
The administration also announced that Abd al-Rahim al-Nashiri, a Saudi accused of orchestrating the bombing of the USS Cole when it was docked off the coast of Yemen in 2000, will be tried at a military commission. Holder said one factor in deciding to keep Nashiri's case within the military justice system was that the attack targeted a U.S. warship docked in foreign territory, rather than a civilian target on American soil. Seventeen sailors were killed in the bombing.
The cases of four other detainees who had been charged in military tribunals will remain in the military system, officials said. They include Omar Ahmed Khadr, a Canadian citizen, who is accused of killing a U.S. Army sergeant in a grenade attack in Afghanistan in 2002. His case is controversial because he was a minor at the time of the alleged attack, and his attorneys, as well as international human rights monitors, argue that he was a child soldier who should be rehabilitated, not prosecuted.
While in CIA custody, Mohammed was subjected to a series of coercive interrogation techniques, culminating in waterboarding. Asked about the prospect that defense attorneys could use the acknowledged waterboarding to derail the case, Holder said he would not have authorized the prosecutions if he were not convinced the outcome would be successful.
Prosecutors must still present evidence before a New York grand jury, and while the specific charges they will seek remain unclear, Holder said Friday he was all but certain to order the death penalty against the five Sept. 11 conspirators. Mohammed and his co-defendants have said at Guantanamo Bay they want to be executed so to achieve martyrdom.
Of the 215 detainees who remain at Guantanamo Bay, nearly 90 have been cleared for repatriation or resettlement in third countries, according to an administration official. But more than 30 of those are Yemeni, and the administration is reluctant to send them home to a country plagued by a resurgent al-Qaeda and civil strife. A deal to send some Yemenis to Saudi Arabia for rehabilitation is all but dead, the official said. Other detainees are resisting repatriation, and the administration's special envoy, Daniel Fried, is still searching for enough countries to resettle the rest.
As many as 40 detainees could ultimately be brought to trial -- some in federal court and some in military commissions. Both federal and military prosecutors have also been discussing plea agreements with lawyers for detainees, according to sources who requested anonymity because of the sensitivity of the talks.
Excluding those detainees destined for transfer or trial still leaves as many as 75 inmates who will probably be held in some form of prolonged detention because they are too dangerous to release but cannot be prosecuted -- a sizable category not anticipated by some in the administration until they started to read classified files, a number of government officials said privately.
The administration has yet to identify and refurbish facilities in the United States for both military trials and indefinite detention. That process could take at least eight months, according to Charles D. "Cully" Stimson, former deputy assistant defense secretary for detainee affairs in the Bush administration, who studied the logistics involved in 2006.
Human rights groups welcomed the prospect of federal trials.
"The transfer of these cases is a huge victory for restoring due process and the rule of law, as well as repairing America's international standing, an essential part of ensuring our national security," said Anthony D. Romero, executive director of the ACLU. The organization, along with the National Association of Criminal Defense Lawyers, provided legal assistance to the five individuals accused of masterminding the Sept. 11 attacks.
The ACLU and other human rights and civil liberties organizations continue to balk at the administration's decision to continue to use a revised system of military commissions for some detainees, and are stridently opposed to prolonged detention without trial.
Other human rights activists say military commissions, as recently restructured by Congress to provide more due process rights to defendants, can be appropriate for some detainees.
"We applaud the administration's recognition that both the law of war and domestic criminal law are appropriate tools" against al-Qaeda, said Kate Martin, director of the Center for National Security Studies. "It makes sense that those who killed civilians in New York face justice in federal court there. And using military tribunals to try those who attack military objectives overseas as part of a self-declared war on the United States is consistent with the law of war so long as those trials are in fact fair."
Staff writer Karl Vick in New York and staff researcher Julie Tate in Washington contributed to this report.