The Obama administration has been forced to reverse its position on where the trial of the self-declared mastermind behind the September 11 terrorist attacks will be held.
At a news conference in Washington, U.S. Attorney General Eric Holder announced that he is referring the case to the Defense Department, which will conduct a secret trial before a military commission at the U.S. detention center in Guantanamo Bay, Cuba.
"Today, I am referring the cases of Khalid Sheikh Mohammed, Walid Mohammed bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed al-Hawsawi to the Department of Defense to proceed in military commissions," Holder said.
President Barack Obama and Holder had been planning to try Khalid Sheikh Mohammed and his four accused co-conspirators in an ordinary federal criminal court. The government announced in November 2009 that the five men would be tried in a New York City court, not far from the site where Al-Qaeda operatives flew two airplanes into the World Trade Center, killing more than 2,700 people.
The U.S. attorney general said he was referring the case to the Pentagon against his better judgment, describing the federal case that Justice Department lawyers had prepared against the five men as the strongest he had seen in his decades-long career.
Holder said the decision to refer the case to the Department of Defense was necessary because "members of Congress have intervened and imposed restrictions, blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue."
And he repeated Obama's previous assertion that "unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm" national security.
"Decisions about who, where, and how to prosecute have always been and must remain the responsibility of the executive branch," Holder said. "Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments."
Former President George W. Bush first established the secret military commission system at Guantanamo in the post-9/11 era, when the cases of hundreds of detainees needed to be processed and inevitably touched on matters of national security.
The combination of the perceived threat posed by foreign nationals who were picked up on the battlefield, and the top-secret intelligence surrounding their capture, made the government's decision to hold trials in secret far from the mainland uncontroversial.
But one of Obama's first acts as president was to sign an order freezing all pending military tribunals, as part of a comprehensive review of the antiterrorism policies left over from the Bush administration.
The decision is a political defeat for the president, who was unable to persuade opponents in Congress to support his plan to close the detention center and bring the remaining inmates to the United States for trial or incarceration in so-called supermax prisons.
September will mark the 10-year anniversary of the attacks -- a milestone that will bring new scrutiny to the question of whether the victims and their families have yet received justice.
Congressional elections next year mean legislators are unlikely to change their mind and allow civil courts to process the politically sensitive cases, which Holder acknowledged.
"Those restrictions are unlikely to be repealed in the immediate future, and we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice." he said.
Reaction to the news that military tribunals will resume was mixed.
From Congress, a joint statement from Senators Joe Lieberman (Independent-Connecticut) and John McCain (Republican-Arizona), said, "[Khalid Sheik Muhammad] and the other alleged co-conspirators are charged with war crimes and their cases belong before military commissions, not federal courts here in the United States."
But Andrew Prasow, the senior counterterrorism lawyer at Human Rights Watch, said the military commission trial will "keep the world focused on how the defendants were treated [in detention] rather than the crimes they are accused of committing," while "a verdict in the federal court system would be recognized throughout the world as legitimate."
In the city where the trial would have been held -- New York -- Mayor Michael Bloomberg sounded relieved, saying the security requirements for the trial would have cost "a billion dollars."
Valerie Luczinkowska, who lost her nephew in the World Trade Center attack, disagreed with Holder's decision. "We have a perfectly good federal court system [that] has worked for at least a couple hundred terrorism cases," she said.
A military commission, she added, simply can't give people like her "real justice."
written by Heather Maher in Washington with additional agency material