By NSJ Staff Writer
Tomorrow, November 18, Attorney General Eric Holder will appear before the Senate Judiciary Committee, likely facing questions regarding and criticism of his decision to abandon military tribunals for five 9/11 terrorists in favor of using the civilian criminal justice system.
A debate reemerged after Holder’s announcement last Friday that five detainees currently housed at Guantanamo, including alleged 9/11 mastermind, Khalid Sheikh Mohammed (KSM), will be brought to New York to face charges in civilian court for conspiring to commit the 9/11 attacks. Pending the required 45-day waiting period required by Congress, KSM and the other four 9/11 conspirators will be brought to trial in the Southern District of New York, where federal prosecutors from the Southern District of New York and the Eastern District of Virginia will cooperate in trying the cases. Holder also announced that five other Guantanamo detainees, including one facing charges in the USS Cole bombing, would face military commission trials.
Holder’s decision was met by praise by supporters who view the move to try the 9/11 terrorists in federal court as a triumph of the rule of law, allowing for an opportunity to openly prosecute terrorists and bolster America’s image. The decision, however, was also harshly criticized by others who claim that the civilian courts are an improper forum to adjudicate an act of war like the 9/11 attacks (WSJ). Holder’s detractors (Mukasey, Yoo) also cite security concerns arising from housing terrorists in New York, but Senator Chuck Schumer and others have been quick to reassure the public that Manhattan’s maximum security facilities are up to the task. In a recent poll, CNN found that the decision to try KSM in the United States was only supported by 37% of Americans.
This development has also given new life to the debate over the need for a specialized national security court, perhaps a hybrid of military commissions and civilian court. Others see the controversy as an indication of the need to update international law in an age of terrorism.
KSM’s trial will likely be complicated by the government’s use of waterboarding to obtain information from him starting in 2003. This information will be inadmissible as evidence, forcing the government to rely on KSM’s earlier statements or those obtained by the “Clean Team” employed by the Bush administration in 2006 to provide prosecutors with admissions and other statements untainted by the use of coercive interrogation.
NSJ will continue to cover the implications of Holder’s decision and the broader debate over the civilian trial of terror suspects in the coming weeks.