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Legal risks associated with trying alleged terrorists in the Southern District of New York
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Khalid Sheikh Mohammed in 2003 after his capture
On November 13, 2009, United States Attorney General Eric Holder announced the decision of the administration of President Barack Obama to try Khalid Sheikh Mohammed - one of the principal orchestrators of the September 11, 2001, attacks - and four other alleged war criminals previously held at the Guantanamo Bay, Cuba, military base in New York federal court, rather than in a military tribunal.
"After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice,” Attorney General Holder said. “They will be brought to New York — to New York, to answer for their alleged crimes in a courthouse just blocks away from where the twin towers once stood."
Mohammed "will be subject to the most exacting demands of justice," President Obama said.
Unlike virtually all previous terrorism-related trials litigated in the United States, the defendants were not arrested while present in the country. Mohammed was captured by members of the Pakistani Inter-Services Intelligence and United States Central Intelligence Agency’s Special Activities Division paramilitary operatives during a raid in Rawalpindi, Pakistan in March 2003. The New York’s Second District court has subject-matter jurisdiction over Mohammed, Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali, and Mustafa Ahmed al-Hawsawi because a federal question was presented due to the defendants’ alleged violation of United States law which occurred within the district.
"It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered," said New York City Mayor Michael Bloomberg.
Critics of the decision are less interested in symbolism and some are concerned that the security of the United States may be jeopardized by affording the defendants rights under federal law.
"It's a massively stupid decision when we're actually at war with them," said former federal prosecutor Andrew McCarthy, who was involved in the prosecution of Sheik Omar Abdel Rahman for his role in the 1993 World Trade Center bombing. "We have to give them all kinds of information about our methods of intelligence that can only make them more efficient at killing us."
Litigating the action in the Southern District of New York will grant the defendants rights to procedural protections available to criminal defendants under the Federal Rules of Criminal Procedure.
Defense attorneys will undoubtedly file motions under the Federal Rules to hinder the prosecutorial effort. They will likely attempt to have evidence, which would have been admissible in a military trial, excluded based on an alleged violation of the defendant’s right to counsel or a claim that it was obtained by duress. The attorneys for the accused will also have the option to file notice of an incapacity defense, including insanity, which could lessen the degree of culpability.
Attorneys for the accused will likely raise the issue of whether the venue is proper to ensure a fair trial.
"How do you have a trial on 9/11 terrorists in New York with people who don't have some sort of opinion on this?" said Annemarie McAvoy, a New York-based attorney and former federal prosecutor.
"America already gives terrorists more constitutional rights than any other country,” House of Representatives Judiciary Committee member Lamar Smith (R-TX) said. “The administration should not prioritize the rights of terrorists over the rights of Americans to be safe and secure."
The gravest national security concern would arguably be that the defendants could, directly or indirectly, gain access to classified evidence which would not have been available to them had they been tried in a military tribunal.
A federal defendant is entitled to discover any material evidence in the government’s possession that may be favorable to the defense; the trial judge will be able to conduct ex parte hearings to determine the materiality of classified evidence. The judge may also determine whether a substitution or summary of evidence, based on its materiality, is proper.
"The attacks of September 11th were an act of war," Senator John Cornyn (R-TX) said. "Reverting to a pre-9/11 approach to fighting terrorism and bringing these dangerous individuals onto U.S. soil needlessly compromises the safety of all Americans. Putting political ideology ahead of the safety of the American people just to fulfill an ill-conceived campaign promise is irresponsible."
During the trial of individuals involved in the 1993 World Trade Center bombing, also held in the Southern District of New York, defendant Zacarias Moussaoui, aware of the virtual inevitability of his conviction, waived his right to appointed counsel and chose to proceed pro- se. Although serving as his own counsel did not entitle Moussaoui the same access to information and witnesses as an attorney who would have represented him, he was entitled to limited discovery. In the Moussaoui trial, the judge denied requests made by the defendant and “stand-by” counsel to produce some information provided by the FBI during discovery prior to when the defendant decided to proceed pro-se in order to protect the privacy and safety of civilians.
Critics are concerned that, in order for the defendants to receive a constitutionally mandated fair trial, it would be necessary to disclose information and methods of interrogation, as it is believed that defense attorneys will raise an issue of whether the methods used violated international or United States law, significantly complicating the trial and, in essence, litigating the issue of whether methods of interrogation and torture acceptable to the George W. Bush administration and Attorney General Alberto Gonzales violated rights of the accused.
Attorney General Holder and most legal experts are confident in the quality of the prosecution’s case.
"Based on all of my experience and based on all of the recommendations and the great work and the research that has been done, I am quite confident that the outcomes in these cases will be successful," Attorney General Holder said.
“You couldn't have chosen better than Southern New York,” said Otto Obermaier, a U.S. attorney for the Southern District from 1988-1993. “It's the most the talented United States attorney’s office in the country -- indeed I say the world."
Practical concerns exist beyond the strength of the prosecution’s case. There is also concern about the level of security required to maintain order in heavily-populated lower Manhattan, considering the high-profile nature of the case and the passionate emotions felt by those who were affected by the attack.
“Khalid Sheikh Mohammed is the most wanted terrorist in the world. Everyone in the world is going to know precisely where he is at precisely one time," CNN senior legal analyst Jeffrey Toobin said. "The Foley courthouse could become the focus of a great deal of interest from terrorists. That's going to take a tremendous security effort."
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