The announcement on Friday that the trial of Khalid Sheikh Mohammed and four other alleged September 11 conspirators will be held just blocks from the former site of the Twin Towers has quickly given rise to complications.
One factor is the angry reception they are bound to receive in New York. “Hang them,” a construction worker near the “ground zero’ site told AFP. “Put them in a bird cage and hang it in the middle of Times Square,” another man suggested.
A man who works in the area agreed that “It’s the way it should have been from the beginning. This is where the crime happened,” but was also concerned about “how they’ll handle security.”
The trial also poses legal and political risks for the Obama administration. As the Associated Press points out, “The case is likely to force the civilian federal court to confront a host of difficult issues, including rough treatment of detainees, sensitive intelligence gathering and the potential spectacle of defiant terrorists disrupting proceedings. U.S. civilian courts prohibit evidence obtained through coercion, and a number of detainees were questioned using harsh methods some call torture.”
Senate Republican leader Mitch McConnell has already objected that holding a trial in the United States “puts Americans unnecessarily at risk,” and former Bush Attorney General Michael Mukasey complained that “the plan seems to be to abandon the view that we are at war” and warned that the trial could turn into a circus.
Attorney General Eric Holder insists, however, that there is enough untainted evidence to provide a solid case against the defendants. In addition, according to the AP, “the Justice Department, where Holder has spent most of his career, has long wanted to reassert the ability of federal courts to handle terrorism cases.”
Although Holder appears confident in these five initial cases, evidence to try other Guantanamo detainees may be lacking. According to ProPublica, “Most of the remaining detainees are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.” As a result, “federal and military prosecutors are racing each other to strike plea deals with at least a dozen additional Guantanamo detainees whose testimony could be used against some of the most notorious prisoners.”
ProPublica describes this competition between the federal and military systems as reaching unseemly levels. “One defense attorney, who represents a high-value detainee held by the CIA in secret detention and then sent to Guantanamo, witnessed days of fighting between military and federal prosecutors over who had control of the case. ‘We asked a simple procedural question and ended up bystanders to days of turf battles,’ the attorney said.”
It appears, for example, that Omar Khadr, the young Canadian who was captured in Afghanistan when he was only 15, will stand trial before a military tribunal. “We thought that the incoming Obama administration signalled a new day with respect to these cases,” Khadr’s lawyer charged. “I had thought this administration was better than that.”
Officials told ProPublica that there may be winnable cases against 40 more detainees, but another 30 may never face former charges. “The government is fishing in very shallow water,” one defense attorney said with reference to the remaining detainees. As a result, some detainees may eventually be released even without agreement from all intelligence agencies.