The arguments made in the Ghailani case are a good indication of the kinds of claims that the suspected co-conspirators of the 9/11 terrorist attacks may make when their case begins in the same federal courthouse next year. The government’s response in this case similarly reveals how it’s likely to oppose any moves to dismiss the 9/11 cases.

The government’s argument in the Ghailani case can be summed up as: 1) it’s Ghailani’s own fault for being a fugitive before Sept. 11, 2001, while his co-conspirators all got prompt trials in New York; and 2) after the 9/11 terrorist attacks, the need for intelligence trumped all, and the speedy trial requirement got thrown out the window.

The way the government explains is it is somewhat more artful. After 9/11, the United States was at war. So Ghailani, who’d previously been charged as a civilian criminal along with other suspects, who were tried and convicted earlier in 2001, was suddenly transformed into a war criminal. And that changed all of the rules.

Given the threat of another major terrorist attack after 9/11, “the Government had shifted dramatically toward intelligence-gathering as the primary means to prevent such an attack.” When Ghailani was captured in 2004, “the defendant was believed to have, and in fact did have, actionable intelligence about al Qaeda — by virtue of his longstanding position in al Qaeda, his assistance to known al Qaeda terrorists” and his alleged ongoing relationship with Osama bin Laden.

Of course, none of these relationships had actually been proven by the time the government captured Ghailani, since he hadn’t had any sort of trial. But the government’s argument is that because he was believed to have information about al-Qaeda, it was justified in detaining him in a CIA prison, and then at the prison camp at Guantanamo Bay for another five years.

“In light of these extraordinary circumstances, the Government justifiably opted to initially treat the defendant as an intelligence asset,” the government writes.

The details of Ghailani’s imprisonment and interrogation by the CIA are all redacted in the government’s brief. But in the brief asking the court to dismiss the case, Ghailani’s lawyers argue that he was physically and psychologically abused during two years of overseas CIA imprisonment and interrogations at places where techniques “amounting to torture” had been authorized. Ghailani was also denied the right to a lawyer.

Ghailani was eventually charged in 2008 by the military commissions, but that proceeding was stalled after President Obama took office. Ghailani’s case was transferred to a civilian federal court in May.

“We respectfully submit that this case presents possibly the most unique and egregious example of a speedy trial violation in American jurisprudence to date,” Ghailani’s lawyers wrote in their brief.

The right to a speedy trial derives from the Sixth Amendment to the U.S. Constitution. The Supreme Court, however, said in a 1972 case that judges should weigh several factors in deciding whether the right had been violated, including the length of the delay and its reason, whether the defendant himself was to blame, and whether the delay would prejudice the defendant’s case.

Ghailani’s lawyers have said that their client “appears to be so damaged” by his treatment in U.S. that he may be unable to help his lawyers prepare his defense. They’ve asked the court to have an expert examine the mental state of their client.

Here is the Justice Department’s brief:

A variety of conservative groups, Tea Party activists, retired policemen and other New Yorkers who remember the attacks vividly turned out to protest Holder’s decision to “give terrorists the same rights as U.S. citizens.” Many held signs calling for the impeachment of President Obama and Attorney General Eric Holder, at times calling them “the real terrorists.”

Robert Dann, the son of a firefighter from Merrick, N.Y., called Holder’s decision a “moral disgrace.”

“I do not want them here spewing their hate against America,” he said. Like many others at the rally, Dann was also protesting other administration policies, such as “the outrageous spending going on by this government” which he called “pro-socialism.”

Speakers at the rally focused on the 9/11 trials, and called on the audience to protest Holder’s decision and to urge their Congressional representatives to interfere.

“Are you angry?” asked Edie Lutnick, executive director of the Cantor Fitzgerald Relief Fund, which provides aid to victims of terrorism, disasters or other emergencies. “Are you going to do what you need to do to change this?”

Andrew McCarthy, a former federal prosecutor and National Review contributing editor, told the cheering crowd: “We’re back here, because he thinks it’s a crime, and we know it’s a war,” referring to Holder. “Sixteen years ago, when they declared war with us, we answered with subpoenas,” McCarthy said, referencing the 1993 World Trade Center bombing. “They attacked, and we indicted.”

“There are people here who after 9/11 were fighting terrorists, while the people who are running this government were at Guantanamo Bay representing terrorists,” he continued, apparently referring to lawyers currently in the administration who earlier worked to help Guantanamo detainees secure the right to challenge their detentions in court. (Neal Katyal, now the department’s deputy solicitor general, represented Salim Hamdan in his habeas corpus case, and some lawyers from Holder’s former law firm represented Guantanamo detainees as well.) “We are here because we want justice, we want the rule of law,” said McCarthy.

Curtis Sliwa, founder of the Guardian Angels, asked “How are we going to find a jury that can be safe and secure, with Khalid the Schmuck Mohammed?”

Actor Brian Dennehy read a statement from Judea and Ruth Pearl, the parents of murdered Wall Street Journal reporter Daniel Pearl, whom Khalid Sheikh Mohammed claims to have beheaded in Pakistan in 2002. From the statement:

We, who witnessed the darkest side of hell, and have since spent every moment of our lives studying the anatomy of terror, we refuse to accept the strategy of normalization that Holder’s decision represents. Terror is a crime against society, and should not be tried in the same court as crimes against individuals or against a particular country.

Toward the close of the rally, the crowd heard from David Beamer, the father of Todd Beamer, the passenger on Flight 93 who led an attack on the hijackers, and uttered the famous last words, “let’s roll.”

“Mr. President, do not convey constitutional rights to the enemy,” he said. “Right this wrong, stop this attack.” Beamer called for Holder’s resignation, and the crowd replied with the chant: “Holder must go!”

This post was updated at 7:02 p.m. to include the statement of Judea and Ruth Pearl.

Attorney General Eric Holder (WDCpix)

When Attorney General Eric Holder announced earlier this month that the suspected plotters of the Sept. 11 terrorist attacks would be tried in civilian court, he also promised to seek the death penalty for all of them. But the heated debate that followed over the supposed dangers of trying “the worst of the worst” in a New York federal court has largely eclipsed the question of whether the death penalty is actually the best punishment for convicted terrorists.

[Law1]Some of the men have not only proudly claimed responsibility for the attacks, but also said that they want to be executed and martyred. Setting aside any moral concerns about the ultimate punishment, it’s not clear in this case whether the death penalty would act as a deterrence or an incitement to other potential terrorists. When it comes to jihadists who willingly risk or relinquish their own lives for their cause, is the death penalty really such a good idea?

“It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” wrote Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, in a report released earlier this month. “Al Qaeda will exploit an execution by the U.S. government as a significant propaganda victory, no matter how fair and legitimate the trial,” he added in an article in The Guardian.

Even former Attorney General Michael Mukasey said last year that he hoped that these men would not be executed. Asked by students at the London School of Economics in 2008 whether he thought the Sept. 11 defendants, who were then facing military commission trials, should get the death penalty, he said: “I kind of hope they don’t get it. Because many of them want to be martyrs and it’s kind of like the conversation, you know, between the sadist and the masochist. The masochist says ‘Hit me’ and the sadist says ‘No.’ So I am kind of hoping they don’t get it.”

Other legal experts agree, but for different reasons. “I think the fact that the defendants want to be executed shouldn’t count either way,” said Michael Dorf, a law professor at Cornell University, who advocated against the death penalty for these suspects when they faced military commission trials last year. “However, I do think it is legitimate for the government to worry about the possible counter-productivity of the death penalty here. That is, if the government had concluded that executing [Khalid Shaikh Mohammed], et al were likely to substantially aid Al Qaeda in recruiting, a decision not to seek the death penalty could be based in part on that worry.” According to Dorf, executing the men not only wouldn’t deter other terrorists from committing similar crimes, but could even encourage them.

This debate comes at a difficult time for President Obama and his attorney general. The president has promised to close the Guantanamo Bay detention center by Jan. 22, but faces huge challenges. Those range from where to try the suspected terrorists housed there to where to send those that have been cleared for release but can’t be sent home due to potential persecution or political instability. Republicans, citing the dangers to the United States of trying terrorists on our soil and claiming the terrorists don’t deserve the rights accorded to criminal defendants in federal court, have pushed to try most terror suspects in military commissions. Many Democrats, prominent legal experts and former military leaders, on the other hand, have argued that civilian federal courts are better-equipped to handle such cases and would confer a legitimacy on the trials that is critical to restoring the United States’ reputation around the world. In deciding to try the Sept. 11 suspects in federal court, then, the Obama administration is eager to look like it’s still being tough on terrorism and its perpetrators. That may be influencing the decision to seek the death penalty.

Other countries have faced similar debates in the face of repeated terrorist attacks, and ultimately decided that executing terrorists was counterproductive. Although the death penalty is now outlawed in all European Union countries, when the U.K. House of Commons debated whether to repeal the death penalty in Northern Ireland in 1973, there was widespread agreement that executing terrorists, who often wanted to martyr themselves, would only lead to increased violence and terrorism.

The question raises a classic conundrum for criminal law theorists. Punishment in the American justice system is supposed to punish the criminal in a way that seems proportionate to the crime and also deter others from committing similar acts. But if suicide bombers are blowing themselves up for the cause, how much of a deterrent is the death penalty to these sorts of terrorists?

“It doesn’t make sense as a deterrent,” said Columbia Law Professor Jeffrey Fagan in an email. “Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. in this case, the punishment is no match for either the rewards of striking a significant blow at ‘The Great Satan’ or the rewards of martyrdom.”

Richard Dieter, Executive Director of the Death Penalty Information Center, agrees. “Terrorists expect to die or want to die,” he said. “There’s a chance that the death penalty feeds into that.” After the federal death penalty in the U.S. was expanded in 1994 to include terrorism, Dieter notes, “the very next year Timothy McVeigh blows up the Oklahoma federal building. So I don’t think anybody believes it’s much of a deterrent. It might even be an attractor.”

Of course, another purpose of criminal punishment is retribution. Under that theory, the criminal is supposed to get his just desserts –– an eye for an eye, in biblical terms. “For retribution, it doesn’t matter what his preferences are,” says Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania Law School.

“Simply put, these monsters who specifically target civilians have no right to live,” wrote Rabbi Stuart Weiss, director of the Jewish Outreach Center of Ra’anana,in a recent op-ed in the Jerusalem Post, arguing that Israel, which has abolished the death penalty for almost all crimes, should reinstate it for terrorists. “They have forfeited the most basic human privilege by virtue of their crimes; any punishment save death is too good for them and is an obscene insult to the grieving victims of terror.”

It’s the classic notion of retribution. “The idea is that you return to the defendant what he has inflicted on the victim,” said Finkelstein. She herself doesn’t really think that’s possible, though. “There is no way to kill this man nearly 3,000 times, or force him to experience what his victims suffered as they tried to escape the twin towers,” she said.
Still, logical and even strategic considerations are often not what guides such decisions.

“There’s a lot of politics involved,” says Dieter. The Obama administration’s latest decisions on closing Guantanamo and trying terror suspects in federal court has opened it up to a rash of criticism from conservatives . “Maybe it’s part of this total picture that we’re closing this prison down there but that doesn’t mean we’re going to be soft on them,” said Dieter. “Once you open up the whole political world, the calculations are different.”

Scott Fenstermaker, a lawyer defending one of the men, told The Associated Press that they won’t deny their role, but will use the opportunity to “explain what happened and why they did it,” and they will provide “their assessment of foreign policy.” Fenstermaker reportedly met with his client, Ammar al Baluchi, a nephew of Khalid Sheikh Mohammed (KSM), at the Guantanamo Bay prison last week. Baluchi told him the men had discussed the trial among themselves.

Critics of the trial have complained, among other things, that KSM — who has boasted that he was the lead planner behind the 9/11 attacks, as well as many others — will use the opportunity to grandstand and spread terrorist propaganda. The alternative, however, would be to not allow them to speak at their own trial, which would hardly showcase the American principles of open government and fair trials that the attorney general presumably wants to highlight.

Justice Department spokesman Dean Boyd told the AP on Sunday that he’s not worried that the men will dominate the trial or be able to use it as a vehicle to win new recruits. “We have full confidence in the ability of the courts and in particular the federal judge who may preside over the trial to ensure that the proceeding is conducted appropriately and with minimal disruption, as federal courts have done in the past,” he said.

The Southern District of New York, where the Justice Department wants to hold the trial, is the most experienced of all U.S. federal courts in handling major international terrorism cases.

I’m unsure if that was the intention of President Obama or Attorney General Eric Holder when they decided to try the five “worst of the worst” terror suspects in New York, but Ratigan was right (and very creative in his word choice) when he said seeing these guys in person could not only let the air out of some America’s inflated fears of Muslim boogeymen. It could also help shrink the suspects’ own enormous reputations among jihadists around the world.

The contrast of seeing these ordinary-looking men on trial in an orderly U.S. courtroom — where they’re accorded the right to a lawyer, the right to speak in their own defense and the right to call witnesses — could go a long way toward publicly revealing the absurdity of their cause, as well as the justice that a fair and functioning legal system can provide. Even if the trials don’t totally “deboogeymanificate” KSM and his allies, they would certainly make the United States look good. And after all the mistakes the U.S. government made over the last eight years in carrying out its “war on terrorism,” Obama and Holder have made an enormously important global public relations move in choosing not to hide these men away in a military commission somewhere, but to cut them down to human size by treating them as the twisted — but “ordinary” — mass murderers we believe them to be.

Seeking the death penalty may be controversial, given that most of the suspects, including self-proclaimed mastermind Khalid Sheik Mohammed, have said that they want to be put to death and thereby become martyrs for their cause.

That’s led some influential policy advisors to recommend that the 9/11 suspects not be given the death penalty, to deny them that apparent victory.

Additional concerns are the risks of trying the suspects in New York City, which some critics claim will make the city yet again a terrorist target. Others worry that the defendants can’t get a fair trial before jurors sitting so close to the scene of the Sept. 11, 2001 crime. Still others fear defense lawyers will use that concern to appeal any convictions.

At a press conference this morning, Holder sought to assuage the concerns by saying the utmost security measures would be employed, and “a really searching, complete voir dire process” will ensure that the jurors are fair. The voir dire process is how jurors are chosen for a particular trial.

As for whether evidence about their treatment by U.S. officials in custody will come out during the trial, Holder said that it depends on “how relevant were those statements” extracted by abusive measures, and “whether those statements will be used.” Even without statements elicited through waterboarding or other forms of torture or coercion, Holder said he’s “quite confident that we will be successful in our attempts to convict those men.” He did not say what would happen to the suspects if they were acquitted.

Holder called the decision to try the 9/11 suspects in federal court “about the toughest decision that I’ve had to make as attorney general.” A formal indictment listing the charges is expected soon.

The amendment, S.A. 2669, to the Commerce, Justice, Science and Related Agencies Appropriations Act, would have forced the government to try the suspected plotters of the 9/11 attacks in military commissions. The Obama administration opposed the amendment, but still has not announced where it wants to try the 9/11 suspects.

The Graham amendment is expected to come to a vote today during consideration of the Commerce/Justice/Science appropriations bill. The earlier Homeland Security and Defense Department spending bills already include restrictions on transferring Guantanamo detainees to the United States.

This restriction, which is reportedly backed by 150 family members of victims of the 9/11 attacks, would bar the trials of the alleged 9/11 plotters in civilian federal courts, effectively forcing them to be tried by military commissions.

The Obama administration has suggested that it wants to try the 9/11 suspects in federal court, and so far has fought to retain the power to decide where the terror suspects will be tried. Last week, Defense Secretary Robert Gates and Attorney General Eric Holder warned Senate leaders that Graham’s amendment “would be unwise, and would set a dangerous precedent.”

The administration has said it will begin announcing where it wants to try the terror suspects held at Guantanamo Bay by November 16.