Officials have reversed plans for alleged 9/11 mastermind Khalid Sheikh Mohammed and other plotters to face a civilian trial at federal court in Manhattan. Instead, Justice officials say they will be tried by a military commission at Guantanamo Bay. Later today, Attorney General Eric Holder plans to announce referrals for the Defense Department to hold the military trials. Holder first raised the possibility of civilian court in November 2009. But he faced a backlash from New York residents concerned about their security, despite the fact that the city has housed terrorists before. After Congress refused to either appropriate funds to house Gitmo inmates in the U.S. or pay for a costly trial, Holder changed his position. Following President Obama's failure to make good on his promise to close Gitmo, this reversal marks yet another Guantanamo setback for the administration.
Despite pressure not to try suspects in U.S. courts from both sides of the aisle, the legality of the decision is still questionable. The Supreme Court has even refused to hear appeals on how to handle the detainees. Stephen I. Vladeck, a constitutional-law expert and law professor at American University Washington College of Law, told ABC that the military commissions send the wrong signal:
"It's alarmingly premature for the government to decide on military commission trials for these defendants when substantial questions remain as to the legality and legitimacy of these tribunals," said Vladeck. "Sending these high-profile and critically important cases to such a thoroughly untested system, as opposed to the well-established civilian courts which have time and again proved their ability to handle terrorism prosecutions, sends exactly the wrong message about the rule of law in the United States."
Families of the nearly 3,000 victims of the attack have criticized both the Bush and Obama administrations for not proceeding with the trials. But other issues remain. The accused have been held for years without trial and some were subjected to waterboarding, a practice both Obama and Holder have called torture. Mohammed was waterboarded 183 times and claimed the information he gave to interrogators was the result of that torture. He has also denied the legitimacy of tribunals. Military commissions allow the government more leeway in using hearsay. But the White House has pushed through reforms, like banning the use of coerced evidence, in order to make the tribunals more like civilian court.
Update: Weighing in on Holder's decision, The New Yorker's Jane Meyer noted that the attorney general had a specific goal in mind by trying the suspects in New York. In fact, some of the country's smartest prosecutors devoted entire careers to compiling an airtight case against K.S.M. with a criminal trial in mind.
"By using the civilian justice system, Holder had wanted to send several important messages, among them that terrorists are criminals, not some new breed of super warrior."
In the end, reversing the decision ended up doing the opposite:
"[It] may indeed be the defining moment for the Obama Justice Department, defining it, unfortunately, as incapable of standing up to to the political passions still stirred by the threat of terrorism."
The K.S.M. Trial Decision [NYer]