Military Commissions No Place for 9-11 Terrorism Cases

Washington, DC – On the same day that President Obama announced his re-election campaign, his administration will reportedly cave on a key promise of the last election cycle and what used to be one of its core principles:  to bring suspected terrorists to justice in legitimate U.S. courts. This afternoon, Attorney General Eric Holder is expected to announce that alleged 9/11 mastermind Khalid Sheikh Mohammed and four of his co-conspirators in the attacks that claimed nearly 3,000 lives will be tried in military commissions, a move Human Rights First is criticizing as a response to political pressure, not implementation of smart national security policy. “In his first presidential campaign, President Obama stressed the importance of closing the notorious Guantanamo Bay prison and pledged in his first days of office to follow through on that promise. Now, more than two years later, we’re seeing him backtrack, in announcing that we will not have legitimate, reliable trials in the United States for the alleged perpetrators of the most heinous terrorist attack on U.S. soil in our history,” said Human Rights First’s Daphne Eviatar. “The only thing that has changed is the politics. Decisions on where to prosecute suspected terrorists should be made based on careful legal analysis, not on politics. This purely political decision risks making a second-class justice system a permanent feature U.S. national security policy – a mistake that flies in the face of core American values and would undermine U.S. standing around the world.” Retired General Joseph Hoar, responding to the expected announcement, added: “Khalid Sheikh Mohammed is no warrior. He is a criminal and should not be treated otherwise through commissions. Our federal courts have convicted more than 400 terror suspects since 9/11. Commissions have only convicted six.” “This will entrench the very problems in US counterterrorism policy that President Obama declared he wanted to change,” said Eviatar. “Former Vice President Cheney, in referring to the Bush Administration’s resort to torture, indefinite detention, and military commissions, called it ‘the new normal.’ Today’s decision to try the suspected mastermind of the 9/11 attacks as a military combatant, in tribunals that are widely viewed around the world as illegitimate, will help make former VP Cheney’s prediction seem prophetic.” In 2008, Obama criticized the Bush administration’s prosecution of KSM and his co-defendants in military commissions because the trials are “too important to be held in a flawed military commission system” that has been “embroiled in legal challenges.”  Attorney General Eric Holder in November 2009 laid out why civilian courts are the better place to try these defendants than military commissions, noting that “we can prosecutor terrorists in our federal courts safely and securely because we have been doing it for years,” explaining that “we can protect classified material during trial.” He also noted that KSM “will have no more of a platform to spew his hateful ideology in federal court than he would have in military commissions.”  The Attorney General made the case then for why this trial should be held in federal court, and those same facts remain the case today. According to Human Rights First, President Obama cannot only blame Congress for the decision that is expected to be announced today.  “This Administration had two years to bring KSM and his co-defendants to federal courts for trial, and failed to exercise its authority to do so. It can still prepare to do so now, and begin those trials as soon as the temporary ban Congress has imposed is lifted,” Eviatar stated. Even though the Military Commissions Act was amended in 2009, the commissions continue to violate international legal standards of due process and will be the subject of litigation for years to come, with a good chance of being rejected by the courts in the end. Federal courts, on the other hand, are not subject to such infirmities or challenges. Human Rights First says this decision merely prolongs the failed experiment in military commissions and the day of final reckoning for the perpetrators of 9/11. Civilian federal courts have convicted more than 400 terrorists since the 9/11 terrorist attacks. The discredited military commissions at Guantanamo Bay have convicted only 6, almost all via plea bargains that resulted in much lighter sentences, due to the shaky legal ground of many of the military commission charges and procedures. U.S. national security would be far better served by relying on the most experienced federal prosecutors and time-tested federal court system to finally bring the 9/11 perpetrators to justice.