WASHINGTON (CN) – Five Guantanamo Bay detainees, including Khalid Shaikh Muhammed, the alleged mastermind of the Sept. 11, 2001 terrorist attacks, will be prosecuted in Manhattan Federal Court, Attorney General Eric Holder announced Friday. “For over 200 years, our nation has relied on a faithful adherence to the rule of law to bring criminals to justice,” he said.
Holder was clear about what kind of justice he had in mind for all five: “I expect to ask for the death penalty,” he said.
The move by the Barack Obama administration, which was celebrated by members of the legal community, takes a step closer to satisfying Obama’s campaign promise to close the prison at Guantanamo Bay. Obama has accused the prison of recruiting more terrorists than it houses.
Former Chief Judge John J. Gibbons of the U.S. 3rd Circuit who in private practice has argued on behalf of the detainees said the Justice Department’s action marks “signficant progress.”
Congress had held up the closure of Guantanamo, citing concerns about the implications of trying enemy combatants in civilian courts or of moving them to the continental United States. Legislators also rejected an administration request for $50 million to carry out the job and fulfill Obama’s original promise to close the facility by the end of the year.
Congress said it would wait for the Justice Department’s plans on prisoner handling before it allocates the money needed to close the prison.
The trial isn’t expected to begin soon, because formal charges have not been leveled against most of the detainees, and the administration must notify Congress 45 days before moving the suspects.
Five other detainees, including Abd al-Rahim al-Nashiri, who was accused of orchestrating the 2000 attack on the U.S.S. Cole that killed 17 U.S. soldiers, will be placed before military tribunals at Guantanamo.
When asked what would happen if some of the detainees were found innocent, Holder replied that he would not have authorized the cases unless he was certain the outcome would be “a successful one.”
Reporters followed up, asking how the system could be fair and just if the administration picks different forums – civilian or military tribunal – based on the outcomes it wants.
“We’re not looking for outcomes,” Holder replied, maintaining that the decision between a military tribunal and a civilian court will be made on a case-by-case basis. Holder said the identity of the victims, whether military or civilian, plays a role in determining whether to place the alleged perpetrators before a military tribunal or a civilian court.
Other questions, such as whether the detainees would be mentally fit for trial or whether evidence obtained under torture would be admissible, were not clearly addressed. These concerns were underscored by a Justice Department announcement that Mohammed was waterboarded 183 times in March 2003.
Many worry that civilian courts are not equipped to handle the classified information that could arise during a foreign fighter trial or address the difficulty in collecting evidence from the battlefield.
In a phone interview, former 3rd Circuit Chief Judge Gibbons called such concerns “nonsense.” In private practice, he represented 16 detainees before the Supreme Court in 2004.
“They have the same evidentiary problems and witness problems no matter where the cases are tried,” said Gibbons who is the name partner of Gibbons P.C., a 230-lawyer firm based in Newark.
When asked whether a suspect is more likely to be convicted before a military tribunal or a civilian court, Gibbons said there would likely be no difference now, but suggested that under former President George W. Bush, the answer may have been different. “When the Bush administration, in response to the Supreme Court decision, made up the scheme of military tribunals, it was not in accordance with the Uniform Code of Military Justice.”
Many have expressed concern over what would happen if the detainees are found not guilty. Gibbons said that if such were the case, the detainees would have to be repatriated or released in the United States. But some members of Congress disagree.
“We have no intention of releasing these prisoners even if the court determines they are innocent,” Maryland Republican Roscoe Bartlett declared during a July hearing.
“If a Republican said that in Congress, he should be sanctioned,” Gibbons said when asked about Bartlett’s declaration. “That’s disgraceful.” He added that people charged with murder are frequently released.
Asked whether a not guilty verdict for the detainees is even in the realm of possibility, Gibbons replied that it is, and pointed to the repatriation of his clients after the Supreme Court ruled in his favor that the detainees are entitled to a hearing. He suggested it was a sign that the Bush administration was doubtful the evidence would hold up in court.
Many of the complex legal issues surrounding the prisoners stem from the unconventional nature of modern warfare, where it’s unclear how to treat fighters who aren’t part of a national army.
In a traditional war, prisoners of war are held until hostilities cease, and then are released. But the conflict in Afghanistan, where a large portion of the detainees are caught, is not a traditional war, and the prisoners are unlikely to be released when the United States leaves.
One solution for handling detainees is military tribunals: courts controlled by the military, with military service members serving as jurors. But the credibility of the military tribunal system was tarnished by poor evidence and lack of transparency under the George W. Bush administration. Congress and Obama have since reformed the military commission system, barring the admission of statements obtained through cruel or degrading treatment, weakening the power of hearsay, and granting basic protections for defendants unwilling to testify.
Holder said the Justice Department intends to try the five civilian court detainees together. Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi and Khalid Sheikh Mohammed face charges in civilian court for their alleged roles in the Sept. 11 attacks.
The Justice Department has already transferred one former Guantanamo detainee, Ahmed Ghailani, to New York to face prosecution for his alleged role in the 1998 East Africa Embassy bombings.