Posted on 11/16/2009 1:18:02 PM PST by Behind Liberal Lines
Attorney General Eric Holder's announcement Friday that five Guantanamo Bay terror suspects will face trial just blocks from Ground Zero, where almost 3,000 people were killed, has added more fuel to the already heated debate over whether civilian courts can handle terror prosecutions.
The transfer of Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the 9/11 attacks, and four other detainees to New York for trial presents daunting logistical and security problems for the Southern District, as well as a thicket of novel legal issues for the judge who handles the case.
The detention and trial of the five defendants will require extra security for judges, prosecutors and jurors.
Defense attorneys will be required to obtain security clearances to review evidence their clients would be blocked from seeing under the Classified Information Procedures Act, but the defendants may elect to go pro se and turn the trials into platforms for their political views.
Motions to suppress statements made by the defendants, if offered at all, will focus on the unique circumstances of their detention and interrogation, including the possible use of waterboarding and other coercive methods.
Mr. Holder said that prosecutors are likely to seek the death penalty against Mr. Mohammed, Waleed bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali and Mustafa Ahmad al-Hawsawi. In 2001, a Southern District jury convicted four men in the 1998 bombings of two U.S. embassies in Africa, but declined to impose the death penalty.
Mr. Holder said during Friday's news conference that five other Guantanamo detainees would be tried in military commissions.
The announcement came in advance of a Monday deadline for the Obama administration to decide what to do with the 10 detainees.
"For over 200 years our nation has relied upon a faithful adherence to the rule of law," Mr. Holder said. "Once again, we will ask our legal system in two venues to answer that call."
The actual transfer of the men to New York is still weeks away as they have yet to be publicly charged in the civil system with the 9/11 conspiracy, although Mr. Mohammed is under indictment for the failed "Bojinka" plot to blow up multiple airlines over the Pacific in the 1990s.
Once in New York, the men will be housed in 10 South at the Metropolitan Correctional Center, also known as the "terror wing."
As before and during any trial, prosecutors and defense lawyers in New York will argue over the admissibility of evidence, but with an added complication—the viability of information gleaned during interrogations of the five defendants after their capture in the field and at Guantanamo Bay. Mr. Mohammed, for one, allegedly confessed to directing and planning the attacks, but only under duress, including the use of waterboarding 183 times before 2003, when the practice was banned.
Former U.S. Attorney and terrorism prosecutor David N. Kelley, now of Cahill Gordon & Reindel, said he would not be surprised at a defense motion to dismiss any indictment based on interrogations.
"There's a basis in law to dismiss an indictment for outrageous government misconduct, but it's an extremely hard threshold to meet," Mr. Kelley said. "But aside from that kind of very sweeping, broad motion," the defense is also going to be scrutinizing all the evidence, "especially statements stemming from any coercive or extraordinary treatment."
Mr. Mohammed and his co-defendants are almost certain to make a motion for a change of venue, arguing that it is impossible to receive a fair trial in New York City.
But Mr. Kelley said, "Quite to the contrary, New York, with such a diverse and ever-changing population, is probably the best place in the world from which to draw a pool of jurors who would be fair."
Military Commissions
The pretrial maneuvering in the case of another accused terrorist, alleged embassy bomber Ahmed Khalfan Ghailani, illustrates the additional complexity involved in bringing a defendant who had been prepared for trial by military commission into the civil system, where everything from jury selection to evidentiary standards is different.
Southern District Judge Lewis A. Kaplan is now weighing a claim by lawyers for Mr. Ghailani, who became the first Guantanamo detainee to be transferred to New York earlier this year, that he has the right to keep the military lawyers assigned to him at Guantanamo.
But there is another issue about to be debated before Judge Kaplan—whether or not Mr. Ghailani, who was captured in 2004, has had his rights to a speedy trial violated.
Mr. Kelley said Mr. Mohammed and his co-defendants could challenge their pre-indictment delay and their right to a speedy trial under the U.S. Constitution.
Confidential Information
One concern cited by opponents of trying the 9/11 cases in the civil justice system is the potential leak of classified information, including the revelation of techniques and methods for acquiring intelligence.
Former U.S. Attorney General Michael B. Mukasey, who is also a former Southern District judge, told the Associated Press yesterday, "The Justice Department claims that our courts are well suited to the task. Based on my experience trying such cases and what I saw as attorney general, they aren't."
Mr. Mukasey, now at Debevoise & Plimpton, presided over the 1995 multi-defendant trial of Sheik Omar Abdel Rahman, who was convicted of seditious conspiracy in connection with a plot to blow up New York City landmarks, one of several major terrorism trials held in lower Manhattan (NYLJ, May 22).
At a speech before the Federalist Society on Friday, Mr. Mukasey derided Mr. Holder's decision, saying his plan "creates a cornucopia of intelligence for those still at large and circus for those being tried."
And Mr. Mukasey said in a recent column in The Wall Street Journal that, because of the requirement that the government disclose the identity of all known co-conspirators, regardless of whether they are charged, Osama bin Laden learned during the Rahman trial "not only that the government was aware of him, but also who else the government was aware of."
James J. Benjamin Jr. of Akin Gump Strauss Hauer & Feld and Richard B. Zabel, now the head of the Criminal Division in the Southern District, provided another view in a 2009 update of their study "In Pursuit of Justice—Prosecuting Terrorism Cases in the Federal Courts," which was commissioned by Human Rights First, a group that advocates shutting down Guantanamo.
"The Classified Information Procedures Act, although subject to being improved, is working as it should: we were unable to identify a single instance when CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court," the authors state in their report.
Mr. Benjamin said in an interview Friday that there is a potential twist involving the Classified Information Procedures Act.
That twist relates to what Mr. Mukasey described as a "circus"— particularly if any of the defendants elect to appear pro se.
The problem then, Mr. Benjamin said, is that, under CIPA, "It is pretty well established that the defendant does not have the right to see any classified evidence in discovery."
And even though courts will usually appoint stand-by counsel for a pro se defendant, the lack of access to classified material that appointed counsel would normally see could raise an issue on appeal.
Mr. Benjamin said another issue would be statements that Mr. Mohammed made, not while being interrogated, but before the military commission in which he implicated himself in the 9/11 attacks.
But Mr. Benjamin said that, despite the additional complications, "There's reason to be hopeful that the courts will be able to manage the challenges of these cases."
Holder and Zero’s reprehensible political games will cost the US taxpayers billions to bring this BS to NYC. We’re bankrupt already and now they’re adding more debt.
Please stop the BS. Everything disclosed will be made public by the Democratic communist party.
That's the least of the worries, to be sure.
Mr. Holder hasn't even seen fit to file charges against the five, but he is seeking the death penalty? What an imbecile! And btw Mr. Holder, good luck on circumventing the Constitution by going against the law set up by Congress for prosecuting these cases. Your contempt for the Constitution is quite revealing.
Article III, Sec. 2
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
You will be hard pressed to place KSM in New York at the time of the 9/11 attack, Daniel Pearl's murder, the Shoe Bomber plot, etc.
I want to ask the same question here as I did on another thread: Did our troops that were accused of war crimes, murder, rape, etc. get a civil trial with a Jury or did the Military court handle it. If not civil, why not? If it’s good enough for the terrorist enemy, why don’t real Americans have that same right?
Congressman Billybob
Nothing good can come of this...
1) dragging Bush over coals
2) dragging CIA over coals
3) trying to get to higher court - i.e., Hague
4) giving terrorists rights they do not deserve
5) insult/injury to all those who suffered on and for 9/11
The list can go on, I’m sure....
Do Bush & Cheney have immunity from testifying? I could see where the defense would welcome the spectacle.
Where are they going to find “a jury of their peers”?
Some Carter or Clinton appointee will bounce them all for failure to read them their rights and for illegal searches and seizures. BUT, not until the Bush administration has been thoroughly and publicly trashed.
This is why military tribunals are called for.
Former U.S. Attorney and terrorism prosecutor David N. Kelley, now of Cahill Gordon & Reindel, said he would not be surprised at a defense motion to dismiss any indictment based on interrogations.
“Nothing good can come of this...”
Not to mention terrorist death threats to the judge, prosecutors, the jury and their families.
Yup. This was a really great idea. We’d actually be better off letting them go. We wouldn’t have to release so much intelligence data, and we wouldn’t look like the laughing stocks this trial will make of us. And maybe we could hunt them down again and kill them this time (though its more likely they would be given “refugee” status and allowed to stay in the US...).
Would anyone want to serve on the jury for these trials? Not only will these trials take months if not years but everyone involved will be a terrorist target. My bet is that the final jury will make the OJ jury look like rocket scientists.
I would, but then, I’m better armed that your average terrorist who kills innocents in an obvious act of war; oh wait, sorry, criminal defendant in a mass murder trial.
Any chance this is a deliberate attempt to incite to riot?
They are just looking for a reason to declare an emergency, and that darned swine flu just didn’t cooperate.
I think it's simpler than that.
It's an attempt to put Bush on trial through the back door. The defense attorneys/defendants pro se will have multiple opportunities to bring up "torture" and "illegal detention" in the context of whether or not evidence is admissible in the criminal trial.
This will result in numerous stories of such "torture" in the press, "forcing" Obama to appoint a special prosecutor to "investigate" Bush, Cheney, Rumsfeld, et al.
That way, Obama will get his show trial of the previous administration.
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