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9/11 Plotters to Face Death Penalty in New York Federal Court

by Professor Will Huhn on November 14, 2009

in Constitutional Law,Criminal Law,Wilson Huhn

     Attorney General Eric Holder has decided to try five prisoners in the war on terror, including Khalid Sheikh Mohammed, on criminal charges in New York for the attacks of September 11.  They will face the death penalty.

    Yesterday Attorney General Eric Holder released a statement in which he said:

For the past several months, prosecutors at the Department of Justice have been working diligently with prosecutors from the Pentagonâs Office of Military Commissions to review the case of each detainee at Guantanamo who has been referred for prosecution. Over the past few weeks, I have personally reviewed these cases, and in consultation with the Secretary of Defense, have made determinations about the prosecution of ten detainees now held at Guantanamo, including those charged in the 9/11 plot and the alleged mastermind of the Cole bombing.

Today, I am announcing that the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks. Further, I have decided to refer back to the Department of Defense five defendants to face military commission trials, including the detainee who was previously charged in the USS Cole bombing.

The 9/11 cases that will be pursued in federal court have been jointly assigned to prosecutors from the Southern District of New York and the Eastern District of Virginia and will be brought in Manhattan in the Southern District of New York. After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

     In this report CNN quotes Senator John Cornyn (R-TX) as opposing the trials in New York because it "needlessly compromises the safety of all Americans," and Representative Lamar Smith (R-TX) as stating that trials in criminal court because it would "prioritize the rights of terrorists over the rights of Americans to be safe and secure."  The report also quotes Kristen Breitweiser, whose husband was killed in the attack, as supporting the administration's decision because "it would give many of us access to attend the hearings … this will be our opportunity to see justice served and have our day in court."  Josh Gerstein at The Politico reports that many other families of victims of the attack are opposed to the trial, and would rather see the plotters tried in military court.  House Minority Leader John Boehner (R-OH) issued a statement in which he said:

The Obama Administrationâs irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people. The possibility that Khalid Sheik Mohammed and his co-conspirators could be found ânot guiltyâ due to some legal technicality just blocks from Ground Zero should give every American pause.

     In my opinion, the Attorney General made the correct decision.  Even if acquitted, the defendants would not be released from custody.  They are admittedly supporters of al-Qaeda who have waged war against us, and regardless of the outcome of any military or civilian trial we may continue to detain them as prisoners of war for the duration of this conflict – which may be a very long time.

     But there is a more fundamental reason to try these persons in America, in New York, in federal court.  Trial in civilian court will demonstrate to the rest of world that even in the face of a massive attack we have faith in our legal institutions and constitutional processes.   As an attorney, I am proud of the criminal justice system, and I have confidence that our prosecutors, judges, and juries will determine the truth and mete out appropriate punishment.  As an American citizen, I am proud that we have the courage to try these men as criminals – that we say to terrorists around the world – WE ARE NOT AFRAID!


larry d. November 14, 2009 at 10:24 am

How do you rationalize detaining them as prisoners of war after they have been acquitted of their crimes? The implication is that they can be treated as prisoners of war when it suits one political need, as simple criminals when it suits another. A slippery slope.

Quidpro November 15, 2009 at 10:50 pm


Both your post and the Administration's decision to try terrorists in the federal courts promote an unnecessary and dangerous confusion in how we deal with Islamic terrorists. You state: "Even if acquitted, the defendants would not be released from custody. They are admittedly supporters of al-Qaeda who have waged war against us, and regardless of the outcome of any military or civilian trial we may continue to detain them as prisoners of war for the duration of this conflict – which may be a very long time."

Either they are military prisoners or they are criminal defendants. Either they committed acts of war or they committed crimes. If they are engaged in warfare, as they claim, then they are not entitled to a criminal trial to determine their guilt or innocence. They are certainly not entitled to be read their Miranda rights when captured on the battlefield.

Furthermore, you suggest that even if acquitted, they would remain in custody. If the verdict is irrelevant, then proceedings become reduced to a show trial. You appear to support this decision to demonstrate the supposed superiority of the American legal system. But how is our system so superior if the verdict of the trial is irrelevant and the whole point is to showcase our supposed superior justice system?

larry d. November 15, 2009 at 10:54 pm

A "kangaroo court," they call it.

Tim November 16, 2009 at 1:06 pm

To quidpro:

The U.S. Congress has twice given federal courts jurisdiction to try War Criminals. Congress passed the War Crimes Act of 1996 to permit u.s. federal courts to hear cases where someone committed a grave breach of the Geneva Conventions at the victim or perpetrator is a U.S. citizen or member of U.S. armed forces. They reaffirmed this law in 2006 with the Military Commissions Act of 2006.

So the U.S. Congress, the Justice Department, the Federal Court system, Attorney General Holder, President Obama and many more don't make the distinction you make where you wrote:

"Either they are military prisoners or they are criminal defendants. Either they committed acts of war or they committed crimes. If they are engaged in warfare, as they claim, then they are not entitled to a criminal trial to determine their guilt or innocence."

That's not what our law says.

I would rather see a specialized court system for National Security issues, comprising leading experts in the field and judges and attorneys who have handled these types of cases in the past (either as military legal professionals or other legal professionals). We have specialized courts for bankruptcy, patents and trademarks, admiralty and juvenile courts. How hard would it be to just create another specialized court for something as important and sensitive as National Security?

Tim November 16, 2009 at 5:34 pm

I also want to comment on the patent absurdity of Rep. Boehner's and others comments that KSM and his cohorts could be found not-guilty on a technicality. How incompetent must all the dozens (if not hundreds) of government and military attorneys be to have eight years of time to gather facts and evidence to charge these men with crimes and then lose their case on "a technicality" or some procedural ground? I'm not saying this trial is fixed, I'm just saying that there is no way our government could have expended resources for nearly a decade on gathering information about KSM and the others only to lose their trial because of an unsigned document or coerced confession.

And the idea that KSM or anyone else would be found not guilty and then walk out of the court house is even more absurd. Our military history provides many examples of where people were tried by a commission and then held for a period of time after that, even after being acquitted of charges. One needs only examine the trials that took place during the Civil War to see examples of this.

larry d. November 16, 2009 at 7:55 pm

"We'll give you a fair trial because we know you can't win."

That's banana republic stuff, Tim.

Quidpro November 16, 2009 at 9:00 pm

Thanks for the cites, Tim. I never meant to suggest that no statutes existed in the federal criminal code to cover the attacks of 9/11. Indeed, prior to 9/11 the policy of the government was to treat terrorist attacks as crimes rather than acts of war.

My criticism of the decision of the Administration and the Professor's post is that if we are at war, then we should stop using the tools of the criminal justice system to fight it. KSM and his cohorts were captured on the battlefield. They are not entitled to the extra protections accorded to defendants in the American criminal justice system.

As a Senator, Obama supported military commissions. If we must try for war crimes, we should use that forum. Otherwise, there is no need to to hold any trial until hostilities have ceased.

Larry is correct as to your second point, Tim. No trial is a foregone conclusion. Except a show trial. KSM will have a top-notch defense team that will exploit every technicality available. And it is not a question of the competence of the prosecutors. When was KSM read his Miranda rights? Has any of the evidence, gathered under battlefield conditions, been compromised? Have we preserved the chain of custody? Rep. Boehner's concerns are valid.

The Administration's decision is both foolish and dangerous.

Tim November 17, 2009 at 3:41 pm

Larry D,

I do not understand what you mean by Banana Republic. Maybe you mean Kangaroo Court again and your just mixing metaphors.

Some people are just guilty and even with the best defense team, guilt is guilt. KSM has proclaimed himself to be the mastermind of this plan. He was saying that before he was captured and I don't think anyone really doubts his guilt. It's just a matter of how the gov't goes about proving it and I was trying to point out that I am confident the gov't will be able to prove it with reliable evidence. Confessions get thrown out for not complying with Miranda all the time, and people still get convicted in this country. Chain of custody applies in a much narrower circumstance than I think you are giving it credit. People still get convicted.

Obama supported Military Commissions, and now he is supporting a civil trial. People (especially politicians) change their minds. But the Supreme Court said the Military Commissions weren't really fair in Hamdan v. Rumsfeld, so what good are convictions in a system that our own Supreme Court says is unfair?

The professor's point, as I understood it, is that there is more domestic and international faith in the American Federal Court System than in the Military Commission, so a trial in that court would be viewed as more fair because it is in this court. And we should trust that our system is fair and can hand down a fair result.

The real argument I was trying to make is that we should just make different courts for National Security issues. It could have different procedures and it could ensure fairness while at the same time, give the gov't a little more benefit of the doubt. I don't want KSM on trial in federal court in NYC. I don't think he deserves to go to NYC after trying to destroy it, especially since his trial will be just blocks away from Ground Zero. It might, as the professor suggests, show him that he failed and NYC is still strong and still there. But National Security issues are too sensitive for regular courts and military commissions are too unfair to defendants to trust their determinations.

I don't want KSM in fed court or a Military Commission. I want a new court system for those issues.

larry d. November 19, 2009 at 8:56 am

I think you might be thinking of the term "mixed metaphor," Tim. But no, stating the trial will be a kangaroo court in one post then stating that such a trial is the stuff you see in banana republics in a subsequent post isn't a mixed metaphor.

But if the military commission is unfair or not respected by the world, why isn't Obama getting rid of military commissions altogether and bringing all the terrorists to NYC? It's just politics.

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