The Obama administration has decided to try Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001, terrorist attacks, before a military commission at Guantanamo Bay. The decision, announced on Monday by Attorney General Eric Holder, ends more than a year of to-ing and fro-ing over where to try the self-professed Sept. 11 plotter.
While the attorney general said he continued to believe that the case should be tried in federal civilian courts, he said he "reluctantly" came to the conclusion that congressional opposition made that all but impossible.
"We were prepared to bring a powerful case against Mohammed and his four conspirators," Holder told reporters at a Justice Department press conference. "Had this case proceeded in Manhattan or an alternative venue in the U.S., I'm confident that our justice system could have performed with the same distinction as has been its hallmark in the last 200 years."
But Holder said the unending succession of delays had hurt Sept. 11 families "who have waited for nearly a decade for justice." That's why, Holder said, he decided to allow that justice to be found in a military court.
Holder blamed Congress for forcing his hand and overstepping its responsibilities. He said that when lawmakers passed legislation that cut off any funding to bring Guantanamo detainees to the U.S. for trial, they encroached on what he saw as a "unique executive branch function" — namely the ability to decide how to handle cases against terrorism suspects.
What a difference two years makes. In November 2009, Holder had announced amid much fanfare that Mohammed and the other suspected Sept. 11 plotters would be tried in a federal court in New York City. At the time, he said that the courts in New York had handled other high-profile terrorism cases — such as the first African Embassy bombings case — and New York juries had little difficulty finding defendants guilty. Mohammed, he declared, would be no different.
Initially, New Yorkers hailed the decision. But city officials say the local groundwork before the announcement turned out to be too little, too late, and a groundswell of opposition rose up. City leaders said security for the trial would run hundreds of millions of dollars. They worried aloud about whether the trial would make New York a target for terrorism. Community activists said the area around the courthouse would become like a war zone with barricades on streets and snipers on the rooftops.
Then Congress weighed in.
Both Democrats and Republicans passed legislation that essentially prevented the Justice Department from getting any funding to bring suspects from Guantanamo Bay to the United States for trial. Then, this past January, the president signed a defense bill that explicitly prohibited the use of Defense Department money to transfer detainees from Guantanamo to the U.S. or even third countries. The law also prevents the Pentagon from using any of its appropriated money to build facilities in the United States to house detainees.
Analysts said that bill sounded the death knell for a Sept. 11 civilian trial.
"The problems associated with a civilian trial would have been insurmountable and likely would have been a propaganda circus," said Glenn Sulmasy, author of the book The National Security Court System. "This is great news for the families of the victims of 9/11 — because finally the case has been slated."
Analysts said Monday's announcement didn't come as a total surprise. President Obama said last month that he had signed off on resuming military tribunals at Guantanamo Bay.
Civil liberties advocates howled. They said routing suspected terrorists into a special court will erode the power of regular U.S. courts and could end up establishing an alternative legal system. It is unclear exactly what a military commission trial for Mohammed and the other Sept. 11 suspects will mean. The feeling had been that since Mohammed had admitted to plotting the attacks, his trial would be fairly straightforward. But Holder said in his press conference that it might not be so simple.
It is unclear whether a military commission can sentence the men to death if they plead guilty. The way the statute is written for military commissions it is clear that if someone is convicted he can be sentenced to death, but it isn't clear whetherf that can happen if a defendant pleads guilty.
Holder, for his part, said he wasn't retiring from the field of battle. He said he intended to get Congress to repeal the restrictions that ended up hamstringing the Justice Department. He said he reserved the right to try terrorism suspects in the U.S. in the future.
There are about 170 prisoners who are still being held at Guantanamo Bay. Almost three dozen of them were slated to face trial in either U.S. criminal courts or military commissions. Since 2002, nearly 600 prisoners have been transferred to other countries to face trial, finish jail terms or be released with time served.