9/11 Masterminds Could Face Trial in Federal Court

Wednesday, October 21, 2009 at 6:00 am
Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the Obama administration nears its deadline for deciding where to try the men suspected of masterminding the Sept. 11, 2001 terrorists attacks, there are strong indications that those trials could take place in federal courts in the United States. That’s prompting fervent opposition from Republicans, who say the 9/11 terrorists should never be allowed anywhere on U.S. soil, let alone in a civilian U.S. court.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

Military Commissions lead prosecutor Capt. John F. Murphy told reporters in September that four different U.S. attorneys offices in New York, Washington and Virginia were vying for the opportunity to try the five now-infamous defendants, which include Khalid Sheikh Mohammed, the self-described mastermind of the attacks on the World Trade Center and the Pentagon. Walid Muhammad Salih Mubarek Bin ‘Attash; Ramzi Binalshibh; Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are the other four. According to Murphy, the Eastern and Southern Districts of New York, based in Brooklyn and Manhattan, respectively; the Eastern District of Virginia, based in Alexandria; and the District of Columbia had all submitted requests to hold the high-profile trials in their courthouses, and to detain the suspects in their jails during trial. The military commissions are also seeking to try the defendants.

Meanwhile, White House lawyers, a task force advising the president, and President Obama have all said that their preference is to try terror suspects in federal courts whenever possible, although they have not ruled out the possibility of using military commissions to try some of them. It remains unclear which ones.

The administration has promised to make its final decision on where to try the 9/11 suspects by Nov. 16. Fearing that the administration is inching toward bringing them to New York City or the Washington, D.C., area, opponents of trying high-level terrorists in U.S. federal courts are stepping up their efforts to keep the five men out of the United States for any purpose. On Oct. 9, Sen. Lindsey Graham said he’d attached an amendment to an appropriations bill that would prohibit the Obama administration from spending money on prosecuting and trying these five alleged terrorists in U.S. civilian federal courts.”Khalid Sheik Mohammed needs to be tried in a military tribunal,”Graham told McClatchy Newspapers. “He’s not a common criminal. He took up arms against the United States.”

Graham is not alone in that view. In August, he joined Sens. Joe Lieberman (I-Conn.), John McCain (R-Ariz.), and Jim Webb (D-Va.) in sending a letter to President Obama expressing concern over reports that the Administration may try Khalid Sheik Mohammed and other alleged war criminals in civilian courts. The senators urged the administration to try them in military commissions instead, saying in part:

The individuals detained at Guantanamo Bay are not held because of violations of domestic criminal law. They are detained because they have been found to be members of al-Qaida or other terrorist organizations, and have taken up arms against the United States of America. The forum for their trial should reflect the fact that these detainees were captured as part of a military operation and face trial for violations of the law of war. As a result, we urge you to prosecute these suspected war criminals by military commission at Guantanamo Bay.

The bill, H.R.2847, is pending in the Senate as an amendment to an appropriations bill.

On Tuesday, former Attorney General Michael Mukasey made a similar argument against allowing the 9/11 defendants to be tried in a civilian federal court in an op-ed in The Wall Street Journal. Mukasey warned that the costs and burdens of security would be enormous, that housing suspected terrorists in U.S. prisons would threaten national security, and that a public trial would elicit sensitive evidence that would compromise intelligence sources and that terrorists will later use against us.

Those sorts of arguments outrage many legal experts and former military officers, who say that only a public trial in a U.S. federal court that affords terror suspects the same rights as all ordinary criminal suspects will carry the legitimacy necessary for such an important trial. And they dismiss the claims that housing terrorists in U.S. maximum security prisons, where terror suspects have been imprisoned for many years, would create any danger at all.

“The federal criminal justice system has adjudicated nearly 200 cases involving international terrorism in the year shortly before and since 9/11,” said Gabor Rona, International Legal Director of Human Rights First, which opposes the use of military commissions to try any Guantanamo detainees. “The idea that it cannot handle classified evidence, evidence from abroad, evidence obtained in the context of armed conflict, all of those have been proven false by the existence and the adjudication of all of those case in the federal criminal justice system, and many of those cases feature precisely those problems.”

“The bulk of resistance to bringing Guantanamo detainees to the U.S. is simply uninformed,” Rona continued. “The ‘not in my backyard idea,’ which I think is a crazy notion of people fearing that they’re going to have to be sitting next to a member of al-Qaeda when they go into Starbucks, is just nuts. We’re not talking about releasing suspected or known terrorists into the streets. We’re talking about transferring them to highly secure correctional and detention facilities for purpose of trial. If they’re found not guilty or guilty and they serve sentences, they’re still not entitled to be in the U.S., they will be deported. I think the administration is confident, and should be confident about being able to convey that this is not a situation that involves risk to Americans.”

Some former military officials hope the president will see it that way as well. On Tuesday, a group of retired generals sent an open letter to Congress, kicking off a campaign to close Guantanamo Bay and have the detainees brought to the United States for federal court trials.

“With 145 convicted international terrorists being held in our prison system, there has been no escape from a supermax correctional facility in the United States,” said retired Lt. Gen. Robert Gard, Chairman of the Center for Arms Control and Nonproliferation, on a conference call with reporters on Tuesday. “It does not threaten the security of this country to move however many of the remaining 226 detainees that we cannot farm to other countries or try and incarcerate, to move them from Guantanamo into our supermax facilities. The claim from members of Congress that this threatens American security is shameful and without a basis.”

Still, even some civil libertarians believe it would be legitimate for the administration to try the Sept. 11 suspects in military commissions at Guantanamo Bay or on U.S. military bases. “Our view is that as a legal matter, the 9/11 conspirators, unlike some other detainees at Guantanamo, could be tried in either federal court or military commissions,” said Kate Martin, director of the Center for National Security Studies. “Then it’s a matter of policy considerations.”

Although Martin says a defendant could get a fair trial in a military commission, that’s not necessarily the case under the current Military Commissions Act, even if recent amendments passed by the House were adopted. “One of the hallmarks of a fair trial is that it’s public,” and the military commissions have so far severely restricted public access. “If they choose the forum based on an interest in keeping parts of the trial secret, then they will lose their legitimacy right there,” she said.

Some military commission critics claim that one reason some Republicans support using military commissions is to keep hidden any evidence that the detainees were tortured by U.S. authorities, which the defendants or their lawyers would almost certainly present in their trials.

“There is a second objective in everything that someone like Mukasey is saying,” said American Civil Liberties Union attorney Denise LeBoeuf, who directs the John Adams Project, which organizes defense lawyers to represent the Guantanamo detainees. “That is covering up the details and the identities of torturers. This country had a systematic system of torture through the military and through contractors. Some of those people objecting to federal court trials now either implemented it, or knew about it and should have said something,” she said, adding that some are still in the administration and have an interest in preventing the information from surfacing.

Indeed, according to Justice Department memos revealed earlier this year, Khalid Sheikh Muhammed was waterboarded 183 times. Details of his treatment would likely come up in his defense, if he were to present one. On the other hand, he has confessed and even boasted to having masterminded the attacks numerous times, and has said he does not want a lawyer and wants to be martyred. He still could bring up his treatment by U.S. authorities in a trial, however.

LeBoeuf and other lawyers involved in the defense of high-level detainees say they’ve heard rumors that the administration wants to try the 9/11 detainees in federal court, but it’s impossible to know for sure what U.S. officials will do until they issue their decision.

To LeBoeuf, the fact that the 9/11 case is so high-profile is a strong reason for trying the suspects in public, in a civilian federal court in the United States.

“When you say the whole world is watching a case, this is the one,” LeBoeuf said. “This is the one where the administration has the greatest urgency and pressure to do it in a fair court. It’s also the one where there are mountains of evidence — for both sides. It’s the most investigated crime in the history of the United States. If you can’t put this case into a federal court, then what case can you?”



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Comment posted October 21, 2009 @ 12:44 pm

Once again, liberals demonstrate that they can't tell (or don't care about) the difference between war and police work. Or maybe they're just poor students of history.

Not every person America takes into custody is entitled to a lawyer and a trial. As the Supreme Court affirmed in the 1950 case Johnson v. Eisentrager, there's a difference between the rights of American citizens and the rights of “enemy aliens” — hostile foreign nationals captured abroad.

It's also noteworthy that during World War II, tens of thousands of Axis prisoners were held in detention facilities on U.S. soil without ever having access to a lawyer or a courtroom.

Moreover, in the case of Islamic terrorists, there's a possibility that a judge could grant a discovery motion that would open the books (even more than Obama already has) on anti-terrorism techniques and confidential sources.

Again, there's a difference between the way a nation fights a war and the way it administers civilian justice. In World War II, we ambushed and shot down the plane of Japanese Admiral Yamamoto. But if, in a ridiculous move, we'd adhered to the rules of civilian justice, we couldn't have imposed the death penalty without arresting him and putting him on trial.

Khalid Sheikh Mohammed, the 9/11 mastermind who helped declare war on America, should never see the inside of a civilian courtroom. And any politicians who vote to make that happen had better keep a supply of cardboard boxes handy for the day after the next election, when they'll be cleaning out their desks for their successors.

Comment posted October 21, 2009 @ 5:58 pm

Good thing Generalissimo Graham isn't running the country.

Comment posted October 21, 2009 @ 6:35 pm

Dear uponfurtherreview-

You confuse the issue:

1. Eisentrager held that detainees charged with war crimes did not have a right to seek relief in US civilian courts. These detainees did receive trials and lawyers, via military justice. No one above argues that Guantanamo detainees charged with law-of-war violations has a right to a civilian trial; some do argue that it is in the broader interests of the US to try as many in civilian courts as possible. In any event, Eisentrager must now be evaluated in light of Boumediene, which adds significant nuance to your simplistic presentation.

2. It would have been perfectly reasonable for the US to try to capture Yamamoto rather than shoot down his plane, had that been practical. Had Yamamoto been captured then he would indeed have been entitled, under the laws of war, to a trial (not necessarily civilian) prior to any punishment. Similarly, given that KSM is captured, he cannot legally be executed without a trial.

Comment posted October 22, 2009 @ 1:30 pm

Dear SteveL:

1. Regarding Eisentrager, you're essentially saying the same thing I did. My point in bringing up the Eisentrager case was that not everybody taken into custody by the American government is entitled to a lawyer and a trial IN AN AMERICAN CIVIL COURT. (I thought my position was obvious, but if it helps clarify, I'll add the extra five words.)

I have no problem with the Guantanamo detainees being subjected to a military trial … but I maintain that it isn't required during a time of war. Tens of thousands of Axis prisoners were detained indefinitely (until hostilities ceased) on U.S. soil during World War II — without access to lawyers and courtrooms. I've never heard any serious complaint that this was a violation of their civil rights … after all, how expensive and downright silly would it have been to assign lawyers to each of them?

I disagree, however, with your statement that “no one above argues that Guantanamo detainees charged with law-of-war violations (have) a right to a civilian trial.”

I've been on other forums where many people flatly asserted that the U.S. has no right to hold ANYBODY in custody indefinitely without charging him with a crime, assigning him an attorney, etc.

But obviously, we can't fight wars in the courtroom, and there's a rather dramatic difference between taking an Al Qaeda member prisoner on an Afghanistan battlefield and busting a shoplifter in the Dubuque Walmart.

2. You call my position on Eisentrager simplistic, but I would apply the same adjective to your assertion about Yamamoto. You say “it would have been reasonable for the US to try to capture Yamamoto … had that been practical.”

Well … sure. That's another way of saying, “It would have been reasonable to do that, except that it wasn't reasonable to do that.”

Beyond that, I'm not sure how you define “punishment,” but I maintain that Yamamoto or any other wartime enemy combatant could have been (and could still be) detained indefinitely, without lawyer or trial, until hostilities cease(d). I agree that Yamamoto, if captured alive, and KSM could not legally be executed without a trial, but of course that would include a military trial.

The deeper issue that I was addressing is this: We undermine our own cause, not to mention our own national security, when we confuse military justice with civilian justice. Too many self-styled civil rights advocates decry the fact that, for instance, we've held Detainee No. 235 for five years without charging him, giving him a lawyer or putting him on trial.

My point is, so what? If Detainee No. 235 was a foreign national captured on a foreign battlefield while firing an AK-47 at American troops, he is an enemy combatant who is not entitled to charges, lawyer or trial, particularly in an American civil court.

Really, how ludicrous would it be if we had to scour the dusty villages of Afghanistan looking for a witness who could testify that “Yes, I can say with certainty that the tall, bearded man in the orange jumpsuit was one of the 50 jihadists in the Tora Bora cave who, on the night of November 17, 2001, fired his weapon at American soldiers with intent to do bodily harm.”

Comment posted October 22, 2009 @ 5:49 pm

Federal courts will provide credibility to the process.

What the Repubs are afraid of are the rules of evidence that apply.

Bush's prison administrators in Guantanamo were so dictatorial so autocratic that they didn't bother with anything close to prisoner's rights. Thus the Federal Courts are going to find that many prisoners don't have any files that contain legal charges or evidence of illegal acts.

Comment posted October 22, 2009 @ 5:54 pm

It seems you pick and choose parts that you like of history and the law.

I thought the G. Conventions didn't apply (per Bush)?

Is this a war issue or a justice issue. War is a legal state between two or more nations? There are rules for war and there are rules for justice. You don't seem to want to be consistent in your application.

You seem to just want to say they are guilty as POWs???

Comment posted October 23, 2009 @ 2:13 pm

“What the Repubs are afraid of are the rules of evidence that apply.”

Sorry, you're missing the obvious point — that you can't fight a war in the courtroom.

The usual civilian rules of evidence SHOULDN'T apply to Guantanamo detainees … do you seriously expect the U.S. military to produce civilian witnesses for every enemy combatant rounded up on an Afghanistan battlefield?

Don't confuse military justice with civilian justice, because with that kind of logic, you'll end up telling our troops that they have no right to shoot at a known enemy except in a case of self-defense.

Comment posted October 23, 2009 @ 7:00 pm

Whatever their alleged desire to be martyred (and who wouldn't want to be martyred after being waterboarded 183 times) Khalid Sheik Mohammed and the other four are patsies. Their involvement in 9-11, like that of bin Laden himself, was peripheral, close enough so that they could be framed by what was really done by corrupt agents and gangsters within our own covert intelligence apparatus. Only a real trial in open court that is not hamstrung by the bogus need for state secrecy could bring this out.

9-11 is not “the most investigated crime in the history of the United States”!
Not by our government! The Bush administration prevented any real investigation of 9-11. The 9-11 Commission Report and the NIST reports were written by the Bush Administration and are utter fabrications. 9-11 has never been honestly investigated. Anything like an honest investigation would BEGIN with the established fact that these buildings did not “collapse” but were demolished with high explosives, and would go on from there to determine who put them in the buildings and why. Please visit the web site of Architects and Engineers for 9-11 Truth, ae911truth.org, where approaching 1000 professional architects and engineers have signed their names and put their professional reputations on the line to say that the government account of the destruction of these buildings is violates basic principles of physics and that high-tech explosives were used. Unmistakable residue of such an explosive, nanothermite, has been found ubiquitously throughout the dust that covered Manhattan after the event. Please see the following scientific paper, Active Thermitic Material Discovered in Dust from the 9/11 World Trade Center Catastrophe .


Tony Wicher
Architects @ Engineers for 9-11 Truth

Comment posted October 24, 2009 @ 4:01 am

The Bush administration of LIARS MADE IT UP!
Every time Dick Cheney OPENS HIS MOUTH he lets loose another confession of some little detail we THOUGHT we KNEW THE TRUTH about and it turns out to be ANOTHER LIE!
How can you or anyone in the WORLD KNOW what's true about 9/11 other than anything Cheney says is QUESTIONABLE AT BEST so stop using his thoroughly IMPEACHABLE “testimony” to JUSTIFY 8 years of WAR, kidnapping, beating, raping, threatening CHILDREN, torture and MURDER!

Comment posted October 26, 2009 @ 1:13 am

The US should ship these guys to Britain and tell them to seek asylum and they will get it with a life on welfare benefits from the socialist government of Gordon Brown.
I f Osama Bin Laden turned up in Britain seeking asylum and saying he was homosexual he would be welcomed with open arms.
Tens of thousands of Muslims from countries western army's are fighting in are allowed entry to the UK as immigrants.
How long before American drones are firing missiles into British Muslim ghettos?

Comment posted October 26, 2009 @ 1:16 am

Yes but Cheney has never said the 9/11 terrorists were Saudi's plus one Egyptian and trained to fly the airplanes in USA?

Comment posted October 26, 2009 @ 1:41 am


Most of these people do not even have a CAPTURE DATE included on this list. 99 are Saudis, 73 Afghanis, there are Russian, Yemenis, Germans, Americans, Canadians and on and on! NO ONE KNOWS WHO THE “ENEMY” IS! Other than Richie and Georgie SAID SO!
One was arrested and DETAINED because he was wearing a CASIO digital WATCH! Whatever could he have been planning to DO WITH THAT?
For Congress Critters to sit up there on Capitol Hill shaking in their cowardly BOOTS over the possibility some of them MIGHT GO FREE, even though they NEVER DESERVED BEING LOCKED UP IN THE FIRST PLACE, let alone BEATEN, TORTURED, THEIR CHILDREN THREATENED, TERRORIZED AND MURDERED, in some cases, ALL based on the THOUSANDS OF LIES TOLD BY Richie and Georgie is LUDICROUS!

Comment posted October 26, 2009 @ 4:25 am

Republithugs just don't want the FULL TRUTH to come out as to just how deeply corrupt the Bush Administration really WAS or how big a part in the corruption was PLAYED by the Republithugs in Congress AND how Bush managed to “convince” so many Democrats not to STOP HIM. We KNOW one of the ways he kept Dems in line was with ANTHRAX contaminated MAIL and the threat of Martial Law and suspension of the election IF THEY CROSSED HIM!

Comment posted October 27, 2009 @ 11:23 am

Whom are you talking to, Makaainana? I don't recognize my opinions in your characterization of them.

I'm not at all confused about war and justice. War doesn't just involve nations and formal declarations — as we've seen in recent decades, war can also involve stateless terrorist groups who are bound not by a common citizenship, but by a common religion.

If that's not war, then what's your argument — that this is a “justice” issue? That Al Qaeda members captured on a battlefield in Afghanistan should be given the same legal status as petty thieves arrested in Des Moines? That international terrorists are nothing more than common criminals??

I believe that the stateless barbarians who organized the 9/11 attack were at war with America and certainly should be treated no better than the Axis prisoners in World War II who were held until hostilities ceased and given neither a lawyer nor a court hearing.

Comment posted October 28, 2009 @ 8:30 am

I have published an Open Letter to Eric Holder, the US Attorney General, asking him to either properly investigate the 9/11 Attacks or charge me with libel for accusing Dick Cheney of murdering at least 175 innocent American citizens that fateful September morning. Please read the letter, and show your support by asking that the charges be filed against me if the government will not conduct an open investigation to find the true criminals responsible for murdering nearly 3,000 of our fellow countrymen.


Thanks in advance for your help!

Daniel Edd Bland III

Comment posted October 29, 2009 @ 1:38 am


Comment posted October 29, 2009 @ 1:38 am


FBI Interrogators Argued in 2002 That ‘Enhanced’ Interrogation Techniques Were Illegal and Ineffective « Yuvablog
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[...] latest memo also sheds light on why some in the Defense Department and some Republicans are now so eager to try Guantanamo detainees in military commissions rather than in Article III [...]

Comment posted November 13, 2009 @ 3:17 pm

*** At first the fbi produced a flight manifesto with arabian names and photographs of the so-called high jackers yet these people can be found alive living in the middle east and doing interviews? How are they still alive if they are the high jackers? Also where is the evidence that Khalid Sheikh Mohammed did this and what does Osama Bin Laden have to do with 911 then. Lies Lies Lies. Worst of all they bring the court case down the street from the Twin Towers. This is a trick to boost the support and moral the war; the American people and military soldiers.

Don't believe anything from your so-called leaders face value. They dont support Country Patronism but Corporate Patronism.

Comment posted November 13, 2009 @ 8:17 pm

*** At first the fbi produced a flight manifesto with arabian names and photographs of the so-called high jackers yet these people can be found alive living in the middle east and doing interviews? How are they still alive if they are the high jackers? Also where is the evidence that Khalid Sheikh Mohammed did this and what does Osama Bin Laden have to do with 911 then. Lies Lies Lies. Worst of all they bring the court case down the street from the Twin Towers. This is a trick to boost the support and moral for the war; the American people and military soldiers.

Don't believe anything from your so-called leaders face value. They dont support Country Patronism but Corporate Patronism.

Comment posted April 2, 2010 @ 10:49 am

Great News! Thanks You Very Much.

Comment posted April 30, 2010 @ 9:49 pm


Comment posted May 1, 2010 @ 6:19 am

I really can't say for sure, of course, but I believe the Bush Administration had prior knowledge. We know that Cheney ORDERED the Air Force to “Stand Down” before it was broadly known 4 planes had supposedly disappeared from the radar screens. Once that was known, he still insisted they “Stand Down”.
We know, for a FACT, the official “story” was absolutely untrue.
Also, IF the Bush Administration, at least factions of it including Cheney, had known nothing, there would have been no need to falsify any evidence, hide evidence, or cover up the lack of evidence.
One thing I believe is that the attack was supposed to have occurred earlier in the morning, before all the workers arrived for the day. I have no evidence of that, only a suspicion that it was the REASON Cheney was asked at NORAD that morning if they were to “go ahead” (I don't remember the exact words reported by the person Cheney was talking to) and Cheney replied by asking if they'd heard anything different to which the answer was “No” and Cheney told them there was no change.
There is so much more I couldn't begin to address it all. But the following link, to AE911Truth.org is a wealth of information from the most reputable people in the Architectural engineering field. You might be interested in checking them out.
We KNOW building 7 was demolished. We also know it takes a whole lot more that 12 or 14 hours to place the explosives to achieve the results accomplished in the demolition of Building 7 and we KNOW thermite was found in the debris of the twin towers. We KNOW jet fuel does NOT burn hot enough to melt steel beams.
Oh we also know that OUR GOVERNMENT put many members of Bin Laden's family along with many Saudis on 2 planes, AFTER all other air traffic had been ordered haulted, and whisked them ALL out of the U.S. before any of them could be questioned and that, alone, is the most suspicious thing in my mind because standard procedure of any law enforcement branch would have been to question all who had any connection to any suspect.
Anyway, here's the link.

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