9-11 Trials Back To Guantanamo

In this sketch by Janet Hamlin, Khalid Sheikh Mohammed and Waleed bin Attash attend their arraignment inside the war crimes courthouse at Camp Justice in Guantanamo Bay on June 5. 2008.

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show Carol Rosenberg, reporter for the Miami Herald, discussed Attorney General Eric Holder’s turnaround decision to try Khalid Shaikh Mohammed and four others accused of plotting the September 11th, 2001 attacks before a military commission in Guantanamo Bay.

Eight years after Khalid Shaikh Mohammed, the self-described mastermind behind the 9/11 attacks was arrested, and over a year since Attorney General Eric Holder announced he would be tried before a civilian court in New York City, Holder reversed his decision and said KSM and other 9/11 trials would be held in Guantanamo before a military commission. Critics call it capitulation to pressure, celebrants call it justice.

Holder never changed his mind, but Congress made it impossible for him to get his way.

Congress has had a series of bills that say you will not spend a penny of taxpayer's money to put them on trial on U.S. soil. They have forbidden the use of money, any federal funds to bring them to the United States, anyone from Guantanamo for any purpose, trial, detention, release if they were found to be wrongfully held. Congress blocked the administration into a corner, they cornered Eric Holder, and that's what he said yesterday. He said, 'I believe the right place for these trials is Manhattan but they've made it impossible and we need to get these trials over with.'

Holder, along with the ACLU, has been consistently clear that he would prefer to have the trials in New York City. He revealed on Monday that a federal grand jury had indicted all five suspects under seal in December 2009.

Holder put this out there to demonstrate that it was doable in New York, to demonstrate to people who were worried that you couldn't trust a civilian judge and jury to convict in this case because of the issue of secret evidence, he put this out there to demonstrate that they believe they could have tried this case in a Federal court, a civilian court and gotten a conviction.

Opponents of a civilian trial felt there were too many security and political concerns.

As we've seen in Guantanamo they use these trials as a showcase for their ideology, of martyrdom, of Al Qaeda, of the way they see America, and I think some people just didn't want to stomach these men in a courtroom getting this due process in a civilian court, articulating those kind of ideology right there not far from ground zero.

The Ghailani verdict may have affected the decision.

After a New York federal jury acquitted Ahmed Ghailani in November of over 280 murder and conspiracy counts in the 1998 bombing of two U.S. embassies in East Africa, convicting him of only one count of conspiracy that placed him in prison for life, the controversy over the right venue for terrorist trials was reignited. Rosenberg said that the Ghailani episode cemented beliefs on both sides.

The people who say that federal justice will convict when they can convict and won't overreach, and support the idea of civilian juries saw that as a good example. They tried him, they tried a sweeping indictment and the jury did its work and convicted him of a crime that gave him life. But the people who say you can't trust a civilian judge and jury because some of this evidence is classified and some of this evidence found its way to a federal court by way of the CIA and black sites, those people say you can't trust them because evidence that should be put before a jury won't be put before a jury.

Military commissions don't guarantee guilty convictions anyway.

Despite the widely held belief that military trials are tougher and more likely to convict terrorist suspects and hand them harsh sentences, they don't actually have a better record than civilian courts and critics say they are open to constitutional challenges.

The critics continue and the criticism continues that this process is untested, untried and will end up back at the supreme court. We don't know that that will happen but there's plenty of people out there who say this system is not the same as a federal criminal trial that they say has tried hundreds of terrorists through the years, since the first World Trade Center attack, and gotten convictions.