By Peter Finn and Carrie Johnson
Washington Post Staff Writers
Saturday, November 14, 2009
Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, and four co-conspirators will be tried in Manhattan federal courthouse less than a mile from Ground Zero, the Justice Department announced Friday, the most concrete demonstration yet of the Obama administration's desire to reassert the primacy of the criminal justice system in responding to terrorist acts.
In planning to transfer Mohammed and his co-defendants from the U.S. military detention center at Guantanamo Bay, Cuba, to civilian court, the administration takes a significant step toward reversing the Bush administration's practice of declaring suspected members of al-Qaeda and related groups to be unlawful enemy combatants subject to extra-judicial or military detention. The decision also adds some momentum to the administration's lagging effort to close the military prison camp on the southeastern tip of Cuba.
"For over 200 years, our nation has relied on a faithful adherence to the rule of law to bring criminals to justice and provide accountability to victims," said Attorney General Eric H. Holder Jr. "Once again we will ask our legal system to rise to that challenge, and I am confident it will answer the call with fairness and justice."
But the effort to criminalize the events of Sept. 11 and accord Mohammed the full panoply of rights enjoyed in a federal trial has infuriated and dismayed Republicans, as well as some organizations of victims' families. They argued that military commissions at Guantanamo Bay offered a secure environment, a proper forum for war crimes, and adequate legal protections for a ruthless enemy.
"The Obama Administration's irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people," said House Minority Leader John A. Boehner (R-Ohio) in a statement. "The possibility that Khalid Sheik Mohammed and his co-conspirators could be found 'not guilty' due to some legal technicality just blocks from Ground Zero should give every American pause."
The trial of the man the 9/11 Commission Report called a "self-cast star -- the superterrorist" will probably draw extraordinary attention and could burrow into the raw details of the Sept. 11 plot and its fallout, from its conception in Afghanistan to the treatment of al-Qaeda prisoners at CIA "black sites" around the world. Officials said they hope that in placing Mohammed before a jury of ordinary Americans, he will be denied the warrior status he craves.
New York Mayor Michael R. Bloomberg and other officials applauded the decision, but on the streets of Lower Manhattan, the financial district wreathed in ash when the World Trade Center came down in 2001, reaction was more nuanced.
"The jurisdiction of the crime is New York, so I guess it makes sense," said Gwen Taylor, an office worker grabbing her midday meal at a lunch truck, the stainless steel All American Diner. "However, I would rather try them in Guantanamo. Bringing them here and trying them here may cause other radicals to show up and protest. Or it might provoke them into doing something in support of their brethren. But I really understand why they have to do it here."
Shaka Trahan, 34, displayed no such ambivalence. "Wow," he said. "I look at it like this: Wherever the crime took place, that's where they should try them."
Speaking to reporters in Japan, President Obama defended Holder's decision. "I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice," Obama said. "The American people insist on it, and my administration will insist on it."Difficult deadline
Although Guantanamo Bay will soon lose some of its most infamous inhabitants, the administration has all but acknowledged that the facility itself cannot be closed by Jan. 22, the one-year deadline Obama set in an executive order shortly after taking office. Bruising and often unexpected political, diplomatic and legal problems have slowed the administration's effort to empty the military detention center.
The four other alleged key players in the Sept. 11 conspiracy to face trial in Manhattan are Ramzi Binalshibh, a Yemeni; Tawfiq bin Attash, a Yemeni better known as Khallad; Ali Abd al-Aziz Ali, Mohammed's nephew and a Pakistani also known as Ammar Al-Baluchi; and Mustafa Ahmed al-Hawsawi, a Saudi.
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.Emptying Guantanamo
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.