9-11 Trials Back To Guantanamo

Tuesday, April 05, 2011

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. (Brennan Linsley/AFP/Getty Images)

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.


Carol Rosenberg


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Comments [19]

Amy from Manhattan

Edward, thanks for your answer. I think the ability to add unrelated riders to legislation is 1 of the greatest flaws in the legislative process. (And of course, each side complains when the *other* side does it!)

Apr. 06 2011 12:39 AM

Dear Gary:

Thank you for clarifying. I did read your link; I found it paranoid, unconvincing, and Islamophobic. Moreover, I find the binary that you wish to draw between Islam as a monolithic entity and the US to be totally false (though there are others, like Peter King, who see the world as you do). As a Christian, I am repeatedly confronted with passages from my own Bible that mandate execution for witches (Leviticus 20:27), the stoning of premarital non-virgins (Deuteronomy 22:21), and the violent revenge including infanticide upon one's enemies(Psalm 137:9) from people who wish to discredit or mischaracterize my faith. I thus find parallel attempts to condemn Islam as an essentially violent religion by citing passages selectively from the Koran to be misleading, inflammatory fear-mongering.

Thank you for making the important distinction between due process - a particular civil right defined by our American Constitution in particular way - and human rights and justice. I think this is a critical element missing from the discourse. Confusing justice (an ideal) with due process (one way in which we Americans have sought to deliver justice, but certainly not the only way to do so) only muddies the waters.

Apr. 05 2011 12:08 PM
gary from queens

Dear Leah,

YOU OBVIOUSLY DIDN'T READ THE LINK I POSTED. Please do so and your question will be answered.

I'm saying that Islam DEFINES "justice" very differently than we do in the US. And yes, it includes cruelty and inhumane treatment. It's all in that on link you didn't read. The substantiation you demanded.

Are "believers in the Koran are not entitled to justice and human treatment?" My point was that if they are true believers of Islamic literalism, they would not be impressed with us if due process was granted to them. They SHOULD be given the due process that is due them----which does not rise to the level that Article 3 courts provide defendents. Humane treatment is not related to due process rights: The former is a human right which terrorists do not provide their captors, whereas the latter is a civil right.

Apr. 05 2011 11:02 AM
Edward from NJ

@Amy from Manhattan, it was part of an omnibus spending bill passed in the last days of the previous session of Congress. While Holder and the administration complained at the time, I would speculate they didn't find it worth scuttling the entire bill and potentially causing a government shutdown.

Apr. 05 2011 10:56 AM

The reversal of the White House on this issue is a disgrace and an outrage.

Obama is a spineless jellyfish who's been governing with his tail between his legs since he took office. If Republicans look at him the wrong way he folds like a cheap lawn chair. He's become a laughingstock.

Apr. 05 2011 10:46 AM
john from office

What would these prisoners do to our men if they captured us. Torture and beheadings is the answer. put them on a leaky boat, out to sea.
Average American does not care about these prisoners.

Apr. 05 2011 10:44 AM

Dear Gary:

I'm not sure I understand you. Are you saying that the Koran instructs its readers to practice injustice, torture, and inhumanity? And that therefore believers in the Koran are not entitled to justice and human treatment? Can you substantiate this claim?

Apr. 05 2011 10:44 AM
Amy from Manhattan

*How* did Congress prohibit bringing the Guantanamo prisoners to US soil? Did they have enough votes to override a veto? Did they "filibuster" in the Senate by threatening to filibuster?

Apr. 05 2011 10:43 AM
Gaetano Catelli from America

"The Thanksgiving Day Parade" -- yeah, that's the ticket.

Apr. 05 2011 10:39 AM
Jeff Pappas from Ct.

Oh and btw these men where NOT soldiers from a Nation / State / Country, so its a no brainer, they are civilians or pirates or gangsters or Terrorists.

Apr. 05 2011 10:35 AM

It sounds like NY's big hang up was it being left on the hook for the added $$ to their budget for security. Unless that was a decoy argument, there didn't seem to be much opposition as per principle.

Apr. 05 2011 10:34 AM
gary from queens

Dear Mr. Longstreet,

You may think that providing enemies in war against the US full due process rights in criminal courts would set an example to our enemies. You would be wrong to think that.

Muslims recruit terrorists by SHOWCASING how weak and tolerant we are. Our legal system with defendents' rights they find abhorent. About one thing especially: That we make laws, instead of following the law of Allah as dictated in the Koran. Men cannot make laws, only God can. Allah describes every judicial sentence appriopriate for everything from stealing to killing to waging war and how you deal with prisoners. Read the Koran. How could you possibly think that jihadists hold our civil freedoms in high regard if they do not aspire to them themselves----because it is not in their holy book that they should. To the contrary.

The reason you are so confused about this is because the Koran TEACHES Muslims at war with infidels to lie and deceive the enemy. Use their conceit and system against them. So that is why you see Islamist groups claiming civil liberties violations all the time. That is why Ossama wrote in his manual that teaches jihadists----if you are captured, always allege you were tortured. Because torture is bad? NO!!! They consider torture a commandment they must perform----AND DO----again, read the Koran.

Or read this article:

OK?! Logic 101. Ready?


Our enemy is not stupid. They know how gullible liberals are, and their conceit over "rights." They know it as well as I do.

Apr. 05 2011 10:34 AM
john from office

The TIMES is very brave with other peoples lives.

Apr. 05 2011 10:33 AM
Arthur Aptowitz from Forest Hills, NY

We have never treated terrorists, whether from the left or right, as anythimng but criminals. Al-Quade claims to be at war with us, we should deny that claim.
Holder never "though outside the box" or, in this case, the Federal Courthouse. There was plenty of time to find another space in NYC that would have prevented no diffficulty in .logistics (e.g., Floyd Bennet Field) but allowed a civilian, criminal trial here

Apr. 05 2011 10:32 AM
Gaetano Catelli from America

thank goodness Congress overruled that Leftwing moron (i know, it's a redundancy).

Apr. 05 2011 10:31 AM
Jeb from Greenpoint

The reality is that cost was the deciding factor. It was mentioned repeatedly by city and federal officials. The implication is that the proper execution of justice does have a price tag. It certainly isn't what I was taught in civics class.

Apr. 05 2011 10:30 AM
Jeff Pappas from Ct.

Amazing , can Obama remember winning the Nobel Peace prize ?
What about getting rid of Gitmo and joining the International Criminal Court.
And it should of been in NYC, the major place of the crime.

Apr. 05 2011 10:30 AM
gary from queens


Never in the history of the United States have our wartime enemies been invited into our civilian courts, clothed in the majesty of our Constitution, enabled by our due process rules to comb through our intelligence files, and given a platform to put our government, our troops, and our society on trial. Unless and until we devise a new system for prosecuting enemy combatant terrorists, military commissions remain the appropriate vehicle for war crimes trials. This is not a departure from the rule of law, it is the rule of law during wartime.

The shame here is that the decision announced today should have been announced in January 2009. That was when the Obama administration pulled the plug on the war crimes military-commission against Khalid Sheikh Mohammed and the other 9/11 jihadists at the very moment when they were prepared to plead guilty and move on to execution.

By that point, millions of dollars and three years of effort had been expended to make discovery, litigate pretrial motions, and prepare for trial. Now, because of the administration’s politicized dithering, the case will have to start again from scratch and the terrorists will be able to raise new legal challenges to the prosecution based on prejudice they will inevitably say this dithering and delay caused.

Apr. 05 2011 10:23 AM
Longstreet from NYC area

What about civilian courts and our cherished values? What about the presumption of innocence these men are entitled to? What about not lowering ourselves to their level?
Just words on the teleprompters, I guess. Hope and change, as demonstrated yet again, is saying whatever you need to one day and completely reversing yourself when the need to get re-elected trumps your core American values.

Apr. 05 2011 09:25 AM

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