Should 9/11 trials be held at Guantanamo Bay?

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A U.S. Army guard stands in a corridor of cells in Camp Five, a facility at the Guantanamo Bay Naval Station in Guantanamo Bay, Cuba September 4, 2007. This photo has been reviewed by the U.S. Military. The names and nationalities of detainees cannot be revealed and facial identification is not permitted by the U.S. Military.    REUTERS/Joe Skipper     (UNITED STATES) - RTR1TFUK

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PHIL HIRSCHKORN, NewsHour Weekend: On September 11th, 2001, Jean Nebbia lost her big brother, Steven Schlag.

JEAN NEBBIA: Steven was a character. If you didn’t like him, he would do something to you to make sure you liked him.

PHIL HIRSCHKORN: A generous soul who loved to ski. A bond trader for Cantor Fitzgerald, Schlag was trapped on the 105th floor of the North Tower, above the first plane hijackers crashed into the World Trade Center.

PHIL HIRSCHKORN: A teacher’s assistant from New Jersey, Nebbia volunteers for the 9/11 Tribute Center giving tours of the memorial site.

JEAN NEBBIA: I get to let people know everything about him. My thoughts are to celebrate what I had with him.

PHIL HIRSCHKORN: Nebbia has also stared down her brother’s alleged killers in person at legal proceedings called military commissions at the U.S. naval base in Guantanamo Bay, Cuba.

PHIL HIRSCHKORN: These five men are the only people in U.S. custody now charged with a direct role in planning 9/11. Long after their capture and detention in secret CIA prisons overseas, they were transferred to Guantanamo 10 years ago.

PHIL HIRSCHKORN: The government says Khalid Shaikyh Mohammed, known as KSM, was the architect who brought the planes plot to al Qaeda leader Osama bin Laden. Ramzi Binalshibh was allegedly his right hand man, the liaison with the 19 hijackers who carried out the attacks. Walid bin Attash allegedly helped train the hijackers in camps in Afghanistan. Mustafa al-Hawsawi and Ali Abdul Aziz Ali allegedly funneled money to the hijackers.

JEAN NEBBIA: They’ve already admitted to it. They’ll get convicted, and the death penalty will be justice served.

PHIL HIRSCHKORN: But that outcome is neither guaranteed nor coming soon. With the military commissions mired in procedural roadblocks and interminable delays, prosecutors and defense attorneys involved in the case say it won’t be concluded before the year 2020.

PHIL HIRSCHKORN: Former United States Attorney David Kelley was part of a team of federal prosecutors in New York that wrote the book on prosecuting major terrorism cases. The first chapter was the trial for the 1993 World Trade Center truck bombing, which convicted four defendants, each sentenced to 240 years in prison.

DAVID KELLEY: You know, we were the ‘go to’ folks pre-9/11, and the criminal justice system, and then on September 12th, it wasn’t so much that way anymore.

PHIL HIRSCHKORN: Kelley won a jury conviction against the attack’s ringleader, Ramzi Yousef, who was sentenced to life in prison.

DAVID KELLEY: Cold-blooded, indeed. And he could, you know, look at you and smile, and rip your heart out at the same time.

PHIL HIRSCHKORN: In the mid-1990’s, Kelley’s colleagues in the Southern District of New York also convicted Omar Abdel Rahman, the Blind Sheik, from Egypt, and nine other Islamic extremists for a conspiracy to carry out attacks on New York City landmarks like the George Washington Bridge and the United Nations headquarters.

MICHAEL MUKASEY: I think the most memorable, historically significant thing about it for me is the degree to which it indicated what was coming.

PHIL HIRSCHKORN: Michael Mukasey was the judge who presided over the trial and used his discretion to sentence Abdel Rahman to life behind bars.

MICHAEL MUKASEY: It was not a great ordeal or a tough call.

PHIL HIRSCHKORN: But Mukasey worries the public disclosure of evidence at that trial aided America’s enemies.

MICHAEL MUKASEY: The government was required to serve a list of unindicted co-conspirators that it knew about, and they did. One name on that list was Osama bin Laden. Very few people had ever heard of him at the time. We later found out that within 10 days or two weeks after that letter was served on the defendants, it had found its way to Khartoum, where bin Laden was then living, and so that he was aware not only that the government knew about him, but also who else the government knew about.

PHIL HIRSCHKORN: After bin Laden soldiers truck bombed U.S. embassies in Kenya and Tanzania in 1998 – killing more than 200 people, including a dozen Americans, federal prosecutors in New York convicted four men for the attack in a jury trial that ended a few weeks before 9/11. All received life sentences.

PHIL HIRSCHKORN: Former federal prosecutor David Kelley believes those early cases proved terrorism trials work.

DAVID KELLEY: Not only because it’s effective because it gets terrorists off the streets, but because it’s done in a way that meets all of our Constitutional requirements.

PHIL HIRSCHKORN: One of those requirements is that any defendant’s statements be voluntary, not coerced.  Kelley says it‘s a myth that once terrorism defendants get a lawyer, they automatically stop talking.

DAVID KELLEY: The old adage is bad guys just want to talk, and they typically do. And notwithstanding their opportunity to have a lawyer, they typically will forego that, at least at the outset, and they’ll give you a lot of information.

PHIL HIRSCHKORN: Before the attacks on the World Trade Center in New York and the Pentagon in northern Virginia, the FBI tried to get information, unsuccessfully, from al Qaeda operative Zacarias Moussaoui, who was arrested for a visa overstay three-and-a-half weeks before 9/11 after arousing suspicion in a Minnesota flight school.

PHIL HIRSCHKORN: Since Moussaoui ended up pleading guilty, his trial in Virginia federal court focused only on his sentence. Instead of the death penalty, the jury opted for life in prison without the possibility of parole.

EDWARD MacMAHON: Moussaoui sits in a cell 23 hours a day, doesn’t even have natural light.

PHIL HIRSCHKORN: Edward MacMahon led the defense team. To date, Moussaoui is the only person convicted by the U.S. in any venue for the 9/11 conspiracy.

EDWARD MacMAHON: It was a very dignified proceeding conducted by a federal judge in a federal courtroom under rules of evidence. A jury deliberated, came to its verdict. Was the client, did he act out? Of course, that happens lots in criminal cases.

PHIL HIRSCHKORN: Moussaoui’s antics and his trying to represent himself caused delays, but so did the government’s blocking access to al Qaeda leaders in military custody, like KSM, that Moussaoui wanted to testify on his behalf. From arraignment to verdict in May 2006, the case took four-and-a-half years.

EDWARD MacMAHON: It seems like a blink of time compared to what’s happening in Cuba. 10 years later they don’t even have a trial date. If I went into court and told a judge in Alexandria that I needed 10 years to prepare for trial, I’d get 10 weeks.

CULLY STIMSON: I believe deeply in both systems.

PHIL HIRSCHKORN: Charles “Cully” Stimson helped write the rules for the military commissions as Deputy Assistant Secretary of Defense in the Bush Administration. He’s also a former military judge and federal prosecutor. Stimson helped manage that transfer of the 9/11 defendants to Guantanamo in September 2006.

CULLY STIMSON: They would be held accountable. They would be brought out of the so-called shadows, and that for those that could be tried, they would be subjected to military commissions.

PHIL HIRSCHKORN: The legal procedures for handling Guantanamo detainees have been subjected to three Supreme Court decisions requiring changes in the military commissions spelled out in two acts of Congress. There have been endless debates about what evidence is admissible, including the mistreatment of the defendants in CIA custody. Stimson is as disappointed as anyone that the 9/11 military commissions are taking so long.

PHIL HIRSCHKORN: It could be 20 years after 9/11 before we have a 9/11 military commission completed?

CULLY STIMSON: And that leaves a bad taste in my mouth and everyone watching this show. The measure of justice is not speed; it’s fairness. You know, the military commissions are not speedy, and they are not quick justice.

PHIL HIRSCHKORN: And it’s not a flaw of design?

CULLY STIMSON: I think that it’s because it’s new, and being tested aggressively and appropriately by the defense in every which way to Sunday. It’s taking time. The best reason it should stay at Guantanamo is because so much work has been done.

PHIL HIRSCHKORN: Stimson points out that work includes 20 weeks of pre-trial hearings, 50 oral arguments, 217 substantive motions, and 500-thousand pieces of evidence turned over to the defense teams.

CULLY STIMSON: There’s a law in place, a federal law in place that says they can’t be brought to the United States. So unless and until Congress changes that law, and there’s the political will to bring them to Federal District Court and hit the restart button, it’s not going to happen.

PHIL HIRSCHKORN: That law passed after the Obama Administration announced in late 2009, it Intended to transfer the 9/11 defendants from Guantanamo to New York for trial in the Federal courthouse less than a mile from Ground Zero.

PHIL HIRSCHKORN: The decision reflected not only a preference of venue by the President and Attorney General Eric Holder, but a track record:

PHIL HIRSCHKORN: Since 9/11, federal prosecutors have won more than 350 terrorism-related convictions in federal court.

PHIL HIRSCHKORN: Besides Moussaoui, the list includes foiled plotters like Shoe Bomber Richard Reid, Underwear Bomber Umar Farook Abdulmutallab, and would-be Subway

Bomber Najibullah Zazi.

PHIL HIRSCHKORN: By contrast, military proceedings at Guantanamo have yielded only 8 convictions, half later reversed, and generally lighter sentences.

PHIL HIRSCHKORN: For example, former Bin Laden driver Salim Hamdan, was sent home to Yemen after a conviction and serving five-and-half years at Guantanamo.

PHIL HIRSCHKORN: Before moving any 9/11 detainees, the Obama Justice Department had a test case: Ahmed Ghaliani, an East Africa embassy bomber captured in Pakistan in 2004 and sent to Guantanamo. He became the first and only Guantanamo detainee ever transferred to U.S. soil and stood trial in Manhattan federal court.

MICHAEL MUKASEY: Ghailani, you’ll recall, almost beat the case. He was acquitted of all the murder counts resulting from the bombing of the embassies. He was convicted only of conspiracy to damage government property.

PHIL HIRSCHKORN: But that was enough to get him a life sentence.

MICHAEL MUKASEY: It was enough to get him a life sentence because of the intended circumstances. But it was an awfully close matter.

PHIL HIRSCHKORN: That close verdict, plus fears that defendants would have a platform in open court, and concerns about public safety in Lower Manhattan fueled opposition to moving the 9/11 trial.

DAVID KELLEY: Is there a security concern? Yeah. But it’s yet another hurdle that can be overcome. I saw greater traffic jams when we came out with Martha Stewart’s conviction than when we came out with any of the terrorist convictions.

PHIL HIRSCHKORN: Still, by 2011, Obama and Holder changed course. The 9/11 defendants remained at Guantanamo.

EDWARD MacMAHON: If when Obama had taken office, if he’d he done what he said, and he had moved those five gentlemen to New York City, they would have already been tried and convicted. No question in my mind. And I feel sad for the 9/11 family members who still want justice and who fly down to Cuba and watch these ridiculous proceedings in Cuba.

PHIL HIRSCHKORN: For two years at Guantanamo, Edward MacMahon assisted the defense team for 9/11 defendant Walid bin Attash. From what he saw, he believes the military is miscast to handle the 9/11 case.

EDWARD MacMAHON: You wouldn’t ask the Justice Department to go take Baghdad and charge into the palace holding briefcases. I just think there’s a lot of institutional inability to put on a death penalty trial in Guantanamo Bay, Cuba. They don’t have judges that have ever done it. The prosecutors have never done it.

PHIL HIRSCHKORN: When Judge Mukasey retired from the bench in 2006 and became President George W. Bush’s Attorney General the following year, his view of terrorism trials in federal court had dimmed.

MICHAEL MUKASEY: We’ve already got a reputation for having a fair system. We don’t need to establish it. The sense that we have to prove something to the world, I think, is ridiculous.

PHIL HIRSCHKORN: Mukasey also sees a benefit in the defendant’s ongoing military detention of the 9/11 suspects.

MICHAEL MUKASEY: The most valuable feature of any of these defendants is as a source of intelligence. You get some information. You go back, check on it. Maybe go back for more. Once he broke, Khalid Sheikh Mohammed was providing information for months.

PHIL HIRSCHKORN: You would stay the course with them for these 9/11 defendants?

MICHAEL MUKASEY: Not sure. I think I would. I think starting again would be a travesty.

PHIL HIRSCHKORN: Guantanamo is not a cheap facility to keep running. These days — the prisoner census below a hundred — it’s estimated it’s three to four million dollars per prisoner, per year.

MICHAEL MUKASEY: Right. You know what the cure for that is?


MICHAEL MUKASEY: Bring more prisoners.

PHIL HIRSCHKORN: Also willing to wait for the outcome at Guantanamo is Jean Nebbia, who lost her brother on 9/11.

JEAN NEBBIA: We need justice. It’s frustrating, but I have no desire to see them on American soil.

The post Should 9/11 trials be held at Guantanamo Bay? appeared first on PBS NewsHour.