TOPICS > Politics

In Switch, Accused 9/11 Plotters to Face Military Trials

April 4, 2011 at 7:50 PM EDT
Attorney General Eric Holder announced that several key terrorism suspects held at Guantanamo Bay will face military trials at the Cuban base and not civilian trials in the U.S. Jeffrey Brown talks to ProPublica's Dafna Linzer about the Obama administration's change of course on Guantanamo trials.

GWEN IFILL: The Obama administration reversed course today and announced the terrorism trials it had hoped would take place in civilian court will instead remain in military tribunals.

Jeffrey Brown has our story.

ATTORNEY GENERAL ERIC HOLDER: 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.

JEFFREY BROWN: The attorney general’s announcement means the self-proclaimed mastermind of Sept. 11, Khalid Sheikh Mohammed and four alleged co-conspirators will stand trial not in federal court but in military commissions held at the Guantanamo Bay prison.

Just 18 months ago, announcing that the suspects would be tried in federal court in Manhattan, Holder said it was federal courts that were the best venue to prosecutor Mohammed, Waleed Bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali and Mustafa Ahmed al-Hawsawi.

ERIC HOLDER: The Justice Department has a long and a successful history of prosecuting terrorists for their crimes against our nation, particularly in New York.

JEFFREY BROWN: But that decision drew widespread criticism and protest, forcing the administration to change its stance.

Today, Holder put the blame squarely on Congress.

ERIC HOLDER: Now, unfortunately, since I made that decision, 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.

JEFFREY BROWN: Holder was asked if he discounted congressional concerns over the safety of the trial venues and other objections.

ERIC HOLDER: I know this case, in a way that members of Congress do not. I have looked at the files. I have spoken to the prosecutors. I know the tactical concerns that have to go into this decision. So, do I know better than them? Yes. I respect their ability to disagree, but I think they should respect the fact that this is an executive branch function, a unique executive branch function.

JEFFREY BROWN: This afternoon, Senate Minority Leader Mitch McConnell hailed today’s announcement.

SEN. MITCH MCCONNELL, R-Ky., minority leader: This is the right outcome to the long and spirited debate that preceded this decision. Military commissions at Guantanamo, far from the U.S. mainland, were always the right idea for a variety of compelling reasons, which I and others have enumerated repeatedly over the last two years.

JEFFREY BROWN: Despite his objections to moving the cases out of federal court, Holder said the military tribunals could deliver justice.

ERIC HOLDER: Prosecutors from both the Department of Defense and Justice have been working together since the beginning of this matter, and I have full faith and confidence in the military commission system to appropriately handle this case as it proceeds.

JEFFREY BROWN: As for fate of the Guantanamo prison, which President Obama originally pledged to close by January 2010, Holder said it was still the administration’s intention to shut it down when possible.

And, for more, we’re joined by Dafna Linzer, senior reporter for ProPublica, a nonprofit investigative news operation.

Clearly a reversal for the administration, and yet, after all that’s happened, I guess not entirely unexpected?

DAFNA LINZER, ProPublica: Absolutely, a full reversal, and yet there was really almost nowhere left for the administration to go.

As Holder said, Congress had sort of tied the administration’s hands, preventing them from bringing any detainees into the United States for trial. So, I think the options before the president now and before the attorney general were, either put these — these detainees, these specific detainees, on trial in a military commission or hold them without trial forever.

JEFFREY BROWN: When he said that he put the blame on Congress for, as he said — and you just repeated — tying his hands, fill in the picture there. What did they do, and when did they do it?


They did a couple of things. And we could see, I think, quite clearly that the administration’s strategy was to put all of the blame on Congress today. Last December, Congress passed legislation that really prevented any government funds from being used to move detainees into the United States, not for trial, not for incarceration, not for military commissions.

They really couldn’t move anybody anywhere. And, in fact, it makes it even difficult to transfer detainees overseas. So, it was very, very difficult. And — but I think that what happened here with the administration is, they kind of used that today to sort of explain away their decision to put these detainees in a military commission, as you say, to explain away their — their reversal, basically, because it was — it was November 2009 when they announced that they were going to go ahead with these trials in federal court.

And those restrictions didn’t exist in November 2009. And I think that it just took so long for the administration to move in the face of opposition. And the longer they waited, the more forceful Congress moved to prevent them from going anywhere.

JEFFREY BROWN: Well, how much do we know about what’s been happening in all this time? He — Holder said today that he had never seen a case so well-researched, well-prepared. And it was also revealed that there had been an indictment back in 2009, right, of the five.

DAFNA LINZER: Right. It looks like, right after Holder made the announcement of his intent to put these detainees on trial in New York, a grand jury was convened in New York, quickly came up with charges, an indictment, which we saw for the first time today.

And, you know, the first time we see it is the day that, you know, that they’re taking it away.

JEFFREY BROWN: It’s not more, right, right, right.



So, you know, I — clearly, that’s what they were up to in 2009. What happened in 2010 was mostly just stalemate. It was Congress becoming sort of a little bit more emboldened each day that the administration did not move forward with moving any detainees anywhere for federal trials, until they got to the point at the end of 2010 where they just made it impossible to move anyone.

JEFFREY BROWN: Do we know in the transfer now back to a military commission, have they been working together — do we know, DOJ, Department of Justice, and Department of Defense? Does it mean starting over? What happens now?

DAFNA LINZER: Yes, this is a good question.

I’m a little bit surprised on two issues. One is Holder talked about not wanting to delay justice further, that moving these detainees into the military commission would move things more swiftly, would bring justice for the families of the 9/11 victims.

And it’s clear today from the responses at the Pentagon that, you know, that may not be so swift. It was — there were — even though Holder said that there would be charges in the military commission, there weren’t charges announced today. It’s unclear when charges will be announced. It’s unclear whether they will seek the death penalty in a military commission setting, as Holder said they would do or they would have done in a federal court.

JEFFREY BROWN: I gather that — I gather that is a question mark still in military commissions, whether the death penalty is a possibility?

DAFNA LINZER: Absolutely, and whether or not — whether or not you could plead guilty if you were facing the death penalty in a military commission. These are all open questions.

And when Holder was asked about this today, he didn’t respond. He suggested that the Pentagon would be the right venue for that. And they haven’t really said either yet.

JEFFREY BROWN: He also continued to say that they will continue to fight for what we heard him say, you know, that we still believe in going the federal trial route, that federal courts can deal with these cases.

So — but does anyone know what that means? Or is it sort of a two-track system at this point?


Well, I think that the administration got themselves into a little bit of trouble early on by going with a two-track system, by announcing that they would stick with military commissions for some detainees and federal trials for others.

Now they’re in a situation where they can really only use one track, which is the military commissions. And I — you know, I think that Holder was genuine when he said that the administration believes in — in using federal courts and will continue to fight for it.

They have not fought hard for it so far. And, in fact, when those restrictions were coming down the line at the end of 2010, Holder was really out there alone. Secretary Gates — you know, the Pentagon is really the warden of Guantanamo, now will also be sort of judge and jury in military commissions.

He was not fighting for federal trials. You know, the Pentagon is quite pleased with having control over the military commissions and that they will continue to go forward.

JEFFREY BROWN: But you’re saying we don’t know any timeline, or we don’t know exactly what happens next or even the charges at this point.

DAFNA LINZER: Right. We don’t know the charges.

As far as using federal courts, I think that, you know, the administration at this point, you know, this is much more of sort of on-the-books wishful thinking, that they will have us in the future. I think there is some question now about what happens to many of the detainees at Guantanamo.

When the administration first put in place their policy, their road map for closing Guantanamo — and, remember, this was the president’s first promise, you know, as our president — what they did was, they created kind of categories for detainees. And they said at the end of this process that 36 of the detainees would be eligible for prosecution. So far, really, you know, almost none of those on the list have faced charges anywhere.

JEFFREY BROWN: All right, Dafna Linzer, thanks very much.

DAFNA LINZER: Thank you.