12:52pm

Mon April 4, 2011
National Security

Military Panel To Try Alleged Sept. 11 Mastermind

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. Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

MICHELE NORRIS, host:

The Obama administration announced today that it will ask a military commission to try the alleged mastermind of the 9/11 attacks along with four conspirators. The decision is a major reversal. It had wanted to try Khalid Sheikh Mohammed in a civilian court, but that was not possible, at least for the foreseeable future.

Here's Attorney General Eric Holder earlier today.

Mr. ERIC HOLDER (Attorney General): We simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice. Like many Americans they differ on where the 9/11 conspirators should be prosecuted. But there is one thing on which they all agree - we must bring the conspirators to justice.

NORRIS: And that justice, Attorney General Holder said, will have to be found in a military court.

NPR's Dina Temple-Raston has been following the story. She joins us now. Dina, in late 2009, Attorney General Holder announced that these five conspirators will be tried in New York City in a civilian trial. So today's decision officially reverses that.

DINA TEMPLE-RASTON: Yes, this was a decision the attorney general didn't want to make. I mean, when you talk to justice department officials privately, they tell you they thought the civilian trials for the 9/11 suspects were not only possible, but actually preferable. And then back in November 2009, when Holder announced that Khalid Sheikh Mohammed and the others would be tried in New York, the announcement was just badly handled and the Justice Department didn't get local officials in New York on board first.

So, just days after the decision, there was a ton of local opposition. New York Mayor Michael Bloomberg said it would cost hundreds of millions of dollars just for trial security. And, frankly, that was the beginning of the end for trying the 9/11 suspects in a federal court.

NORRIS: This reaction in New York that ultimately forced the attorney general to switch venues, how strong was that?

TEMPLE-RASTON: Well, it was strong but that was only part of it. He blamed Congress for tying his - Attorney General Holder blamed Congress for tying his hands. Basically what happened is Congress imposed all these restrictions that made it basically impossible to bring any detainees to the U.S. for trial.

And they blocked funding from moving the prisoners to the U.S. They wouldn't allow the Justice Department to spend money on prisons that might house detainees in the U.S. And it seemed like Attorney General Holder was really angry about that. We have tape of what he said.

Mr. HOLDER: Decisions about who, where and how to prosecute have always been and must remain the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.

TEMPLE-RASTON: You know, and then the attorney general said the administration would continue to try to repeal those restrictions and bring other detainees here for civilian trial in the future. But the way the Justice Department sees it, Congress essentially told them who they can or can't prosecute. And that's what's upset the attorney general.

NORRIS: And you could hear that in his voice. Dina, help us understand something. What will a military trial actually mean for these men who are linked to the 9/11 attacks?

TEMPLE-RASTON: Well, the feeling had been that since Khalid Sheikh Mohammed is the self-proclaimed mastermind of the attacks, that it would be fairly straightforward. But Holder mentioned in the press conference that it might not be so simple. He said it's an open question whether a military tribunal would give Khalid Sheikh Mohammed or the other four men the death penalty if they plead guilty. That's because, you know, the statute for the military commissions hasn't been tested.

What we do know, if someone is convicted, they might get the death penalty. But we don't know if they just plead guilty whether they would. That's still untested.

NORRIS: And that's NPR's Dina Temple-Raston. Dina, thank you very much.

TEMPLE-RASTON: You're welcome. Transcript provided by NPR, Copyright National Public Radio.