(CBS/AP) Self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will be sent to New York to face trial in a civilian federal court, the Justice Department said today.
They are currently charged before military commissions with conspiring to commit the Sept. 11, 2001 terror attacks, which killed nearly 3,000 people.
"After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice," Attorney General Eric Holder said this morning. "They will be brought to New York to answer to their alleged crimes in a courthouse just blocks away from where the Twin Towers once stood."
The cases have been jointly assigned to prosecutors from the Southern District of New York and the Eastern District of Virginia, with the trial held in New York City.
Holder said the cases will be prosecuted "vigorously," and that the maximum punishment would be sought.
"These were extraordinary crimes, and so we will seek maximum penalties," he said. "Federal rules allow us to seek the death penalty for capital offenses and while we'll review the evidence and circumstances following established protocols, I fully expect to direct prosecutors to seek the death penalty against each of the alleged 9/11 conspirators."
In addition to Mohammed, the other defendants are Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi.
Holder said he expected the defendants to be tried together rather than separately, and that "a really searching, complete voir dire process" will arrive at a jury that will ensure a fair trial in New York.
Holder also announced that the prosecutions of five other Guantanamo Bay detainees, accused of orchestrating the October 2000 attack on the USS Cole, which killed 17 U.S. sailors and injured dozens of others, and of participating in an al Qaeda plot to blow up oil tankers in the Straits of Hormuz, will be tried by military commissions.
He said a number of factors went into determining whether a civilian or military court was the proper venue, including (in the matter of the 9/11 case) the crime scene being within the United States and the victims being primarily civilian.
Hodler said recent Congressional reform to the Military Commissions Act would ensure that those trials will be fair and that convictions obtained will be secure.
Warning that Khalid Sheik Mohammed could be found not guilty by "some legal technicality," House Minority Leader John Boehner released a statement saying the Obama administration was putting the interests of "liberal special interest groups" ahead of the safety of the American people.
Sen. John Cornyn, R-Texas, said, "These terrorists planned and executed the mass murder of thousands of innocent Americans. Treating them like common criminals is unconscionable."
Sen. Joe Lieberman, I-Conn., called the defendants war criminals, and said they should not be entitled to the constitutional rights U.S. citizens have in federal court.
Disputing the criticism was former Congressman Tom Andrews, D-Me., now director of the National Campaign to Close Guantanamo. He said treating the accused as warriors only plays into al Qaeda's hands and stokes their desire for martyrdom. "They need to be subjected to the full force of law and justice - nothing less," he said.
At a joint news conference in Tokyo with Japanese Prime Minister Yukio Hatoyama, President Barack Obama said the determination of seeking charges in a civilian court or military court was a legal and national security matter, but said, "I am absolutely convinced that Khalid Sheikh Mohammed will be subjected to the most exacting demands of justice."
Bringing such notorious suspects to U.S. soil to face trial is a key step in President Obama's plan to close the terror suspect detention center at Guantanamo Bay, Cuba. Mr. Obama initially planned to close the detention center by Jan. 22, but the administration is no longer expected to meet that deadline.
It is also a major legal and political test of Mr. Obama's overall approach to terrorism. If the case suffers legal setbacks, the administration will face second-guessing from those who never wanted it in a civilian courtroom. And if lawmakers get upset about notorious terrorists being brought to their home regions, they may fight back against other parts of Mr. Obama's agenda.
"This is not a huge surprise. There have been hints that the attorney general was leaning in this direction but it's a huge departure from the strategy and tactics of the Bush administration, which had tried and failed to get Mohammed tried by the military," writes CBS News chief legal analyst Andrew Cohen.
Change of Venue
Holder expressed confidence in New York, given its experience in hosting such high-profile cases before, including the trials of defendants in the 1993 bombing of the World Trade Center. "We have talked to the Marshal Service there and an analysis was done about the capabilities that exist in New York, and I'm quite confident that we can safely hold people there, that we can protect the people who surround the courthouse area, and bring these cases successfully.
"I don't think that criticism is factually based."
When asked what the disposition of Muhammad or any of the other defendants would be were they to be acquitted, Holder said, "I would not have authorized the prosecution of these cases unless I was confident that our outcome would be a successful one."
The New York case may also force the court system to confront a host of difficult legal issues surrounding counter-terrorism programs begun after the 2001 attacks, including the harsh interrogation techniques once used on some of the suspects while in CIA custody. The most severe method - waterboarding, or simulated drowning - was used on Mohammed 183 times in 2003, before the practice was banned.
When asked this morning if the torture of detainees might jeopardize the outcome of the trial (should, for example, a federal judge throw out the case because of evidence derived from waterboarding), Holder said, "I would not have authorized bringing of prosecution unless I thought in the outcome we could be successful. I will say that I have access to information that has not been publicly released that gives me great confidence that we will be successful in the prosecution of these cases in federal court."
Holder deflected criticism from some about bringing the alleged 9/11 mastermind to trial in a civilian court, saying, "My job as Attorney General is to look at the law, apply the facts to the law, and ultimately do what I think is in the best interest of this country and our system of justice. Those are my guides.
"To the extent there are political consequences, well, you know, I'll just have to take my lumps to the extent that those are sent my way. I think if people will in a neutral and detached way look at the decision I made today and understand the reasons why I made those decisions and try to do something that's rare in Washington - leave the politics out of it, and focus on what's in the best interest of this country - I think the criticism will be relatively muted. Having said that, I'm sure we'll hear a lot of criticism."
"The decision is a vote of confidence in the federal courts and in civilian prosecutors and there are still some safeguards in place to ensure that Mohammed doesn't turn the trial into a religious or political showpiece. There also are ways in which the feds can protect their classified information and still use it at trial," says Cohen.
It was not immediately clear where commission-bound detainees like al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.
The actual transfer of the detainees from Guantanamo to New York isn't expected to happen for many more weeks because formal charges have not been filed against most of them.
The attorney general has decided the case of the five Sept. 11 suspects should be handled by prosecutors working in the Southern District of New York, which has held a number of major terrorism trials in recent decades at a courthouse in lower Manhattan, just blocks from where the World Trade Center towers once stood.
Holder had been considering other possible trial locations, including Virginia, Washington, DC, and a different courthouse in New York City. Those districts could all end up conducting trials of other Guantanamo detainees sent to federal court later on.
The attorney general's decision in these cases comes just before a Monday deadline for the government to decide how to proceed against 10 detainees facing military commissions.
In the military system, the five Sept. 11 suspects had faced the death penalty, but the official would not say if the Justice Department would also seek capital punishment against the men once they are in the federal system.
The administration has already sent one Guantanamo detainee, Ahmed Ghailani, to New York to face trial, but chose not to seek death in that case.
At the last major trial of al Qaeda suspects held at that courthouse in 2001, prosecutors did seek death for some of the defendants.
Mohammed already has an outstanding terror indictment against him in New York, for an unsuccessful plot called "Bojinka" to simultaneously take down multiple airliners over the Pacific Ocean in the 1990's.
Some members of Congress have fought any effort to bring Guantanamo Bay detainees to trial in the United States, saying it would be too dangerous for nearby civilians. The Obama administration has defended the planned trials, saying many terrorists have been safely tried, convicted, and imprisoned in the United States, including the 1993 World Trade Center bomber, Ramzi Yousef.
Mohammed and the four others - Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali - are accused of orchestrating the attacks that killed 2,973 people on Sept. 11, 2001.
Mohammed admitted to interrogators that he was the mastermind of the attacks - he allegedly proposed the concept to Osama bin Laden as early as 1996, obtained funding for the attacks from bin Laden, oversaw the operation and trained the hijackers in Afghanistan and Pakistan.
The charges against the others are:
• Bin Attash, a Yemeni, allegedly ran an al Qaeda training camp in Logar, Afghanistan, where two of the 19 hijackers were trained. Bin Attash is believed to have been bin Laden's bodyguard. Authorities say bin Laden selected him as a hijacker, but he was prevented from participating when he was briefly detained in Yemen in early 2001.
• Binalshibh, a Yemeni, allegedly helped find flight schools for the hijackers, helped them enter the United States and assisted with financing the operation. He allegedly was selected to be a hijacker and made a "martyr video" in preparation for the operation, but was unable to get a U.S. visa. He also is believed to be a lead operative for a foiled plot to crash aircraft into London's Heathrow Airport.
• Ali allegedly helped nine of the hijackers travel to the United States and sent them $120,000 for expenses and flight training. He is believed to have served as a key lieutenant to Mohammed in Pakistan. He was born in Pakistan and raised in Kuwait.
• Mustafa Ahmad al-Hawsawi, a Saudi, allegedly helped the hijackers with money, western clothing, traveler's checks and credit cards. Al-Hawsawi testified in the trial of Zacarias Moussaoui, saying he had seen Moussaoui at an al Qaeda guesthouse in Kandahar, Afghanistan, in early 2001, but was never introduced to him or conducted operations with him.
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