- The Washington Times - Saturday, November 14, 2009

The self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks and four of his alleged cohorts will face federal criminal charges in New York, where prosecutors plan to seek death penalties, the Obama administration announced Friday.

“After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice,” Attorney General Eric H. Holder Jr. said. “They will be brought to New York - to New York - to answer for their alleged crimes in a courthouse just blocks away from where the Twin Towers once stood.”

Mr. Holder said the decision to prosecute Khalid Shaikh Mohammed and the four others - Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali - in civilian court is part of the ongoing process to close the prison at Guantanamo Bay, Cuba, where they are currently being held.

The attorney general also announced that five other Guantanamo detainees, including Abd al-Rahim al-Nashiri - the alleged architect of the USS Cole bombing in 2000 - will face trials in military commissions at locations not yet determined in the United States.

There are no immediate plans to bring any of the detainees to the United States. A recently passed law requires the administration to give Congress 45 days’ notice before it can bring a Guantanamo detainee into the country.

In the case of those headed to federal court, prosecutors must present evidence to a grand jury and obtain indictments for each of the alleged 9/11 conspirators. Mr. Holder said they will seek indictments directly related to the terrorist attacks that claimed the lives of nearly 3,000, and he expects that all five men will be tried together.

The attorney general also said it is likely the defendants will be held in federal prison in Manhattan.

Republican lawmakers and other conservatives, including former Attorney General Michael B. Mukasey, criticized the move as reckless and dangerous.

Rep. Peter T. King, New York Republican and ranking member of the House Committee on Homeland Security, said, “Now that Khalid Shaikh Mohammed, the worst of the worst, and his fellow terrorists are set to be moved to New York, what is the president’s plan to keep Lower Manhattan and all our communities safe?

“Unfortunately, Congress and the American people were never allowed a role in this debate,” Mr. King said. “This is an upsetting pattern for an administration that promised an unprecedented level of transparency.”

Calling the move a return to a “Sept. 10, 2001, criminal justice model,” Mr. Mukasey said during remarks to the conservative Federalist Society that it was “a decision I consider to be not only unwise, but in fact based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously based ideology that calls on them to kill us.”

Mr. Mukasey said he has serious concerns about whether prosecutors will be able to get some of the evidence gathered against Mohammed and the others admitted into evidence. He also expressed concern that the case could be lost on a technicality if defense attorneys successfully argue that the defendants’ years-long detention is a violation of the Speedy Trial Act.

Several defense attorneys involved in the case declined to say whether they would make such moves, but the executive director of the ACLU said some evidence may not be admissible because it was obtained through torture - Mohammed was waterboarded - and defense attorneys may raise the speedy trial issue.

“These will all be at the heart of what will be the arguments in federal criminal court,” Anthony Romero said. “But it is premature for us to say exactly what is being raised.”

Mr. Holder would not discuss specific challenges that defense attorneys could make, but he dismissed their potential impact on the case, saying he has “access to information that has not been publicly released that gives me great confidence that we will be successful in the prosecution of these cases in federal court.”

“I would not have authorized the prosecution of these cases unless I was confident that our outcome would be a successful one,” he said.

Reaction from the families of Sept. 11 victims was mixed.

Debra Burlingame, co-founder of 9/11 Families for a Safe & Strong America, whose brother was a pilot killed on one of the doomed planes, called the decision a “travesty” and “the worst possible choice.”

“This is a dark day for America,” she said in an interview. “We’re going to have the mastermind of 9/11 sitting in a courtroom two blocks from where 20,000 body parts were collected, crowing about his crimes as he refers to that ‘blessed day,’ mocking the entire justice system, ridiculing the judge, and worst of all, rallying fellow jihadists all over the world to continue their attacks on America.”

Members of 9/11 Families for a Safe & Strong America along with a number of New York firefighters this week sent a letter to Mr. Obama, Mr. Holder and Defense Secretary Robert M. Gates opposing such trials in the United States.

“It is morally offensive to offer Constitutional protections to individuals charged with murdering 3,000 individuals, in essence, to jeopardize justice for war crimes victims, in order to make an appeal to the Muslim world,” the letter said.

“For the families of those who died on Sept. 11, the most obscene aspect of giving Constitutional protections to those who planned the attacks with the intent of inflicting maximum terror on their victims in the last moments of their lives will be the opportunities this affords defense lawyers to cast their clients as victims,” the letter said.

However, another organization, September Eleventh Families for Peaceful Tomorrows, said it supports the decision and that “those accused of these heinous acts” will be “treated in a constitutionally sound manner.”

“Only in that way will they get the justice they deserve,” the group said.

Mindy Kleinberg, whose husband was killed in the attack at the World Trade Center, said: “At the end of the day the only outcome worth pursuing is the truth, and the only way to get there is with trials that uphold the Constitution.”

Democratic Rep. Jerrold Nadler, who represents Lower Manhattan where the attacks occurred, called it “fitting that they be tried in New York” and said that his city is “not afraid of terrorists.”

“We want to confront them, we want to bring them to justice, and we want to hold them accountable for their despicable actions,” Mr. Nadler said. “Any suggestion that our prosecutors and our law enforcement personnel are not up to the task of safely holding and successfully prosecuting terrorists on American soil is insulting and untrue.”

Mr. Holder’s decisions about how to handle the cases were made in consultation with Mr. Gates and came just days before a self-imposed Monday deadline. Mr. Holder said it was an important step toward closing the Guantanamo facility, though he didn’t seem optimistic President Obama’s January deadline would be reached as a result.

The decision to try some detainees in military commissions was met with the opposite reaction, as conservatives typically praised the move while liberals generally criticized it.

The military commission system began during the Bush administration as a way to handle the cases of Guantanamo detainees. Critics said the commissions favored the prosecution and were too secretive.

The Obama administration has made changes to the commissions that it says make them more fair and transparent, but human rights groups and civil libertarians remain unimpressed and criticized the president for continuing to use such a system.

Along with al-Nashiri, the others to be tried in military commissions are: Ahmed Mohammed Haza al-Darbi, Ibrahim Ahmed Mahmoud al Qosi, Noor Uthman Muhammed and Omar Khadr - a Canadian national who was 15 when he was captured by U.S. forces after a firefight in Afghanistan.

Audrey Hudson contributed to this story.

• Ben Conery can be reached at bconery@washingtontimes.com.

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