Key 9/11 Suspect to Be Tried in New York/9/11 Trial Poses Unparalleled Legal Obstacles for Both Sides

Key 9/11 Suspect to Be Tried in New York
By CHARLIE SAVAGE
Copyright by the Associated Press
Published: November 13, 2009
http://www.nytimes.com/2009/11/14/us/14terror.html?_r=1&ref=global-home


WASHINGTON — Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday.

But Obama the administration will prosecute Abd al-Rahim al-Nashiri — the detainee accused of planning the 2000 bombing of the U.S.S. Cole in Yemen — and several other detainees before a military commission, the official said.

The decisions to give civilian prosecutors detainees accused of the 2001 terrorist attacks and keep the case of the Cole attack within the military system are expected to be announced at the Department of Justice later on Friday by Attorney General Eric H. Holder Jr. The official spoke on condition of anonymity because that news conference has not yet taken place.

The decision about how to try several of the most high-profile detainees at Guantánamo marks a milestone in the administration’s efforts to close the facility, a policy that President Obama announced shortly after taking office but which has proven more difficult than his team anticipated.

Mr. Obama, asked about the decision during a news conference on his week-long trip to Asia, declined to comment directly, but said that Mr. Mohammed would face justice.

“I’m absolutely convinced that Khalid Shaikh Mohammed will be subject to the most exacting demands of justice,” Mr. Obama said. “The American people insist on it and my administration insists on it.”

No detainee is being moved right away. Under a law Congress enacted earlier this year, lawmakers must be given 45 days advance notice before the executive branch moves a Guantánamo detainee onto United States soil.

The decisions about how to prosecute Mr. Mohammed and Mr. Nashiri have been particularly difficult because their defense lawyers are expected to argue that they were illegally tortured by the Central Intelligence Agency during their confinement, tainting any evidence gathered from their interrogations.

Documents have shown that the CIA used waterboarding — a controlled drowning technique — against Mr. Mohammed 183 times in March 2003. Mr. Nashiri is one of two other detainees known to have been waterboarded before the Bush administration shut down the program, which high-level officials had approved after the Justice Department wrote legal memorandums arguing that the president, as commander-in-chief, could authorize interrogators to bypass anti-torture laws.

In other cases in which the administration has discussed transferring detainees, local communities have risen up through political leaders to say they did not want the prisoners because their towns could become a target for terrorism.

New York City has been different. In March, for example, when the administration prepared to bring Ahmed Kahlfan Ghailani, a suspect in the 1998 bombings of United States embassies in Africa which killed 224 people, to face trial there, Senator Charles Schumer, Democrat of New York, reacted with equanimity, saying that the city was well-accustomed to handling high-profile terror suspects.

“Bottom line is we have had terrorists housed in New York before,” Mr. Schumer said at a March news conference at the Capitol with other Democratic leaders. “They’ve been housed safely.”

Mr. Schumer at the time pointed to the “blind sheikh” Omar Abdel Rahman, convicted in connection with the 1993 World Trade Center bombing, as an example. “The main concern is bringing these terrorists to justice and making sure the public is safe,” Mr. Schumer said. “I have faith that the administration will do both.”

Still, Mr. Ghailani is not facing a potential death sentence, and is not nearly as high profile as Mr. Mohammed. A Sept. 11 plot prosecution in New York City could test such attitudes.

Mr. Mohammed and the four other suspects accused of helping organize the Sept. 11 plot — Ali Abd al-Aziz Ali, Waleed bin Attash, Ramzi Binalshibh, and Mustafa Ahmad al-Hawsawi — had been facing potential death sentences if convicted of the charges the Bush administration had brought against them in military commissions before the Obama administration froze those proceedings. It was not clear what charges they would now face in civilian court.

It was not immediately clear where the military commission trials would take place. The Bush administration spent tens of millions of dollars on a commissions courtroom at Guantánamo, but it has sat empty since the Obama administration froze legal proceedings there to undertake a review of how to handle the detainees. Officials have been eyeing military brigs elsewhere, including some inside the United States.

Helene Cooper contributed reporting from Tokyo.





9/11 Trial Poses Unparalleled Legal Obstacles for Both Sides
By ERIC LICHTBLAU and BENJAMIN WEISER
Copyright by The Associated Press
Published: November 13, 2009
http://www.nytimes.com/2009/11/14/us/14legal.html?th&emc=th


WASHINGTON — How do you defend one of the most notorious terrorist figures in history?

One step, legal analysts say, may be to ask for a change of venue.

Khalid Shaikh Mohammed’s lawyers, whoever they are, will no doubt question whether he can get a fair trial from a jury sitting, as Attorney General Eric H. Holder Jr. noted, in a Manhattan courthouse “just blocks away from where the Twin Towers once stood.”

Then will come the inevitable challenges to interrogation methods used on Mr. Mohammed during more than six years in detention. The government has acknowledged waterboarding him 183 times to extract information about the Sept. 11 attacks, which he eventually admitted planning.

Finally, if Mr. Mohammed is convicted, defense lawyers will most likely plead for jurors in New York, historically more cautious about capital punishment than much of the rest of country, to spare the sentence of execution and send him to prison for the rest of his life instead.

The Obama administration’s decision to try Mr. Mohammed and four other terrorism suspects in a civilian court provoked sharp debate among politicians and lawyers about whether American courtrooms are the proper place for so-called enemy combatants, whose suspected crimes were hatched overseas and who viewed themselves as participants in a war against the United States. Both sides agreed that defense lawyers and prosecutors would face unique problems in what is likely to be a hugely complex and emotion-laden case.

Whatever the case, if it actually makes its way before a jury, it promises to be a trial like no other in memory, an extraordinary clash involving the morality of torture, due process rights of foreign terrorist operatives, and the ability of civilian courts to handle national security cases.

Mr. Mohammed and his four co-defendants in military custody have admitted their active involvement in plotting the Sept. 11 attacks and have boasted of their success in killing 3,000 people.

Once the Justice Department brings formal terrorism charges against him, Mr. Mohammed could seek to enter a guilty plea, just as he has tried to do in military custody.

But legal analysts were not convinced that he would go that route and said that he might instead seek to martyr himself in the eyes of Muslim extremists through a grand and lengthy trial.

“There’s reason to believe he will try to take advantage of a public platform — more public than Guantánamo afforded him — to publicize his jihadist views,” said David H. Laufman, a Washington lawyer and former federal terrorism prosecutor.

In fact, one question will be how a judge will prevent a trial from turning into a forum on the American war on terrorism, including the Bush administration’s interrogation policies. Terrorism defendants in lesser-known trials have given rambling speeches condemning the government.

The government may also want to avoid having its own interrogation tactics put on trial. To lessen the impact of the coercive measures used against the men, the F.B.I. has used “clean teams” of investigators to collect information independently and do reviews that it says have not been tainted by rough interrogation techniques. Still, any defense lawyer will try to present evidence, including photographs and the testimony of interrogators, to show Mr. Mohammed and his co-defendants were mistreated.

Prosecutors will counter that Mr. Mohammed’s statements in the last few years should be admissible at trial because they were voluntary and came long after the government stopped waterboarding him in 2003.

But Steven Wax, a federal public defender in Oregon who has represented seven Guantánamo defendants, said that “if I’m the defense attorney, I would say ‘this was the product of torture’ ” and should be thrown out of court.

If the Justice Department does try to introduce evidence that the defense lawyers argue was coerced by torture, “I think that we’re going to shine a light on something that a lot of people don’t want to look at,” said Denny LeBoeuf, an American Civil Liberties Union lawyer who led the group’s efforts in Guantánamo capital cases.

Mr. Holder did not comment directly Friday on the torture accusations but said he was “quite confident” that the Justice Department could produce enough evidence, including some not yet revealed publicly, to get convictions. Indeed, legal analysts said the Justice Department appeared to have a strong case based on Mr. Mohammed’s recent statements at Guantánamo as well as e-mail and Internet communications involving the accused plotters.

Mr. Holder said that if the men were convicted, “ultimately they must face the ultimate justice”—meaning the death penalty.

But one challenge in seeking the “ultimate justice” is New York’s jury pool, which is generally perceived by prosecutors and defense lawyers to be more liberal than other places.

For example, a Manhattan federal jury twice deadlocked in 2001, resulting in life sentences for two Qaeda operatives who confessed to helping bomb the American Embassies in Kenya and Tanzania in 1998, attacks that killed more than 200 people.

It was in part because of the concern about New York juries that the Justice Department brought its prosecution of Zacarias Moussaoui in Alexandria, Va., where jurors were believed to be more likely to vote for the death penalty, according to law enforcement officials. But Mr. Moussaoui also received a life sentence.

Indeed, the last executions in federal cases in Manhattan occurred in the 1950s, most notably the case of the Rosenbergs.

If the Sept. 11 defendants do face death penalty proceedings, their lawyers will almost certainly cite as a mitigating argument against capital punishment their clients’ treatment in detention, including the claims of coercive interrogation and in the case of Mr. Mohammed, the 183 instances of waterboarding.

“I think that’s certainly on everybody’s radar screen,” said David A. Ruhnke, a civilian lawyer who represented one of the five Sept. 11 detainees, Ramzi bin al-Shibh, before the military commissions, and a separate capital defendant in the embassy bombings trial.

“The fact that defendants have already been subjected to cruel and likely illegal punishment,” Mr. Ruhnke said, “becomes a powerful argument against inflicting the ultimate punishment.”

While the defense may consider a motion to move the trial out of New York because it was the epicenter of the attacks, some legal analysts said that might be difficult to do. Such requests have been approved — in the Oklahoma City bombing, Timothy McVeigh’s trial was moved to Denver — but they are rare and prosecutors are likely to argue that the entire country was gravely affected by the Sept. 11 attacks.
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