Setting the stage for a historic criminal trial, Atty. Gen. Eric H. Holder Jr. announced Friday that the government would prosecute the self-proclaimed architect of the Sept. 11 attacks and four others in a civilian courthouse just blocks from the scene of their alleged crimes.
Americans -- especially the victims and family members of those who perished in the suicide hijackings -- “deserve the opportunity to see the alleged plotters of those attacks held accountable in court,” Holder said. “After eight years of delay, those allegedly responsible . . . will finally face justice.” He said he expected prosecutors to seek the death penalty.
Holder’s decision raised legal, political and ethical questions, including what kind of evidence will be used against men whom the U.S. government subjected to brutal interrogation methods. In the case of professed plot mastermind Khalid Shaikh Mohammed, the CIA has acknowledged using a simulated drowning technique known as waterboarding, which many legal experts have said amounts to torture.
“There could be all kinds of problems with the evidence. Some of it might be linked to waterboarding. Other evidence may have come from intelligence-gathering overseas,” said Matthew Waxman, a Columbia University law professor who served as a top Pentagon lawyer in the George W. Bush administration. “That said, the government would not be moving forward if they were not confident they can prove their case” with untainted evidence.
And the trial almost certainly would turn into a propaganda forum for the accused terrorists, Waxman said. “We hold our trials in the open, and that gives defendants an opportunity to spew propaganda,” he said. “They will try to put the U.S. government on trial.”
Holder’s long-awaited decision drew praise from some and harsh condemnation from others, including key Republicans in Congress.
“It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered,” Mayor Michael R. Bloomberg said.
Some survivors and family members of the nearly 2,900 people who died that morning -- in New York, at the Pentagon and in a field in Pennsylvania-- also welcomed the news. Several indicated that they wanted to witness in person the trials of Mohammed and the other alleged Al Qaeda operatives whom Holder said would be indicted soon for their alleged roles in the attacks.
Others shared the concerns of some legal experts that such a public trial would give Mohammed and his alleged associates a very public soapbox to exhort sympathizers to join in their jihad, or holy war, against the United States.
Debra Burlingame, whose brother piloted one of the planes that was hijacked, said she also feared that a public trial might result in the attacks being overshadowed by details of alleged CIA torture and by “the prospect of these barbarians being turned into victims by their attorneys.”
Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, said that holding the terrorism trials in civilian court could result in acquittals, mistrials or shorter sentences. He vowed that Republicans would redouble their recent efforts to block the proceedings through a congressional vote.
But Holder, who called this the toughest decision he has had to make as attorney general, said he believed that the suspects would be convicted based on evidence that would be allowed at trial -- including “information that has not been publicly released.”
“I am confident,” Holder said, “in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years.”
To the extent that there are political consequences, the attorney general said, “I’ll just have to take my lumps.”
President Obama, traveling Friday in Japan, said that he was “absolutely convinced that Khalid Shaikh Mohammed will be subjected to the most exacting demands of justice.”
The five detainees -- including two alleged top aides to Mohammed, his nephew and an accused Al Qaeda paymaster -- had been facing trial before military commissions at the U.S. naval base at Guantanamo Bay, Cuba, until the Obama administration said that it wanted to reassess the way the U.S. treated and tried terrorism suspects.
Holder said that five other Al Qaeda suspects also at Guantanamo would face military tribunals, including Abd al Rahim al Nashiri, the alleged mastermind of the 2000 attack on the U.S. destroyer Cole in a Yemen harbor that killed 17 sailors.
Lawyers for the five alleged 9/11 conspirators said that they had no comment on how the men would plead once they were charged by federal prosecutors. Holder said that would occur as soon as possible under applicable laws, including one that requires at least 45 days’ notice to Congress before prisoner transfers from Guantanamo.
Although some legal experts had predicted that Mohammed and his alleged co-conspirators would be charged for other offenses, Holder said that they would be prosecuted for the 2001 strikes that launched America’s war on terrorism, and that in many ways defined the course of Bush’s presidency.
“They will be charged for what we believe they did,” Holder said, “and that is to mastermind and carry out the 9/11 attacks.”
During pretrial appearances, Mohammed said that he wanted to plead guilty, and he was accused of trying to unduly influence his alleged accomplices into doing so. That raises questions about whether he and Walid bin Attash, Ramzi Binalshibh, Mustafa Ahmed Hawsawi and Ali Abdul Aziz Ali will do the same in civilian court.
The detainees are expected to be held at the same federal prison in New York that housed other suspected Al Qaeda operatives before trials related to the 1993 World Trade Center bombing, the embassy bombings in Africa and other terrorist plots. Virtually all of those men were convicted in trials marked by heavy security and are serving long sentences in federal prisons around the U.S.
Unlike those prosecutions, these trials may face significant political opposition. But Senate Judiciary Committee Chairman Patrick J. Leahy of Vermont is one of many Democrats ready to fight such opposition.
“By trying them in our federal courts,” Leahy said, “we demonstrate to the world that the most powerful nation on Earth also trusts its judicial system.”
Holder and other Justice Department and Pentagon officials said that they had not decided where the military commissions would be held, but that decisions on that and other Guantanamo issues would be coming soon. The other detainees scheduled to appear before military commissions are Ahmed Mohammed al Darbi, Omar Khadr, Ibrahim Ahmed Mahmoud al Qosi and Noor Uthman Muhammed.
Holder said that he had decided to keep the five before military commissions in part because the attacks had occurred overseas and against military targets. Some critics said that undermined the administration’s plans to dismantle not only Guantanamo but the commissions themselves, which have become the subject of international scorn and criticism.
One of the administration officials who played a prominent role in trying to resolve the future of the Guantanamo detainees, White House Counsel Gregory Craig, announced his resignation Friday. He will be replaced by Robert Bauer, who served as Obama’s campaign lawyer.