Litigation

Retreat to be Recommended on 9/11 Trial?

By Peter Hardin

White House advisers are moving toward a recommendation that the accused 9/11 terror attack plotters be tried before a military tribunal. If President Obama received and accepted such a recommendation, it would mark a major retreat.

The Washington Post broke the story and was followed by other news media, including the Associated Press. Attorney General Eric Holder announced last year the defendants would be tried in federal court in New York City, but the administration later signaled it was rethinking that plan.

Now Obama’s advisers are feeling the heat from bipartisan fire against a New York trial and demands, chiefly from Republicans, to keep Mohammed and his codefendants under military jurisdiction, the Post reported. It said the White House may be able to win support it needs from Congress for closing the military prison at Guantanamo Bay if Obama gets, and approves, the likely recommendation of his advisers.

Not only did the plan for a Manhattan trial of the accused 9/11 plotters draw a firestorm of protest, but an attempted attack on a Detroit-bound airliner Christmas Day and lodging of federal terrorism charges against the suspect  inflamed controversy over Obama’s terrorism policy. (See earlier Gavel Grab posts.) This week a New York Times editorial headlined “Trials and Error” urged him to stand his ground:

“The Obama administration was right to have the F.B.I. arrest and interrogate the failed Christmas Day bomber and file federal terrorism charges against him, rather than throw him in a military prison and afford him no rights. While it can be hard to differentiate between criminal and military terrorism cases, this one was easy. The suspect was arrested on United States soil and arrested for plotting to attack a civilian target.

“The Justice Department also was right to plan to try Khalid Sheikh Mohammed and four other suspected organizers of the 9/11 attacks in the federal courthouse in Lower Manhattan. Caving in so quickly to parochial worries and political pressure was foolish. It would be disastrous if the administration were to now give in to this effort to abandon terrorism trials in federal courts and retreat to the tribunals, which may never be able to produce a conviction that Americans can be proud of.”

Meanwhile Anthony Romero, executive director of the American Civil Liberties Union, said, “Even with recent improvements, the military commissions system is incapable of handling complicated terrorism cases and achieving reliable results. President Obama must not cave in to political pressure and fear-mongering. He should hold firm and keep these prosecutions in federal court, where they belong.”

A Justice at Stake report in 2006, entitled ?Courting Danger,? addressed sensitive issues involving the courts in a time of national danger, and it cautioned: ?Congress needs to think long and hard every time it is asked to take the courts out of justice.? That report added, ?Courts are not impediments to the war on terror. They are an indispensable partner in winning  against terror.?

Full post as published by The Gavel on March 05, 2010 (boomark / email).