KSM and Co-conspirators to be Tried by Military Tribunal
The White House finally made the decision. On the same day that President Obama announced his plan to run for reelection, Attorney General Eric Holder announced that a military tribunal, not a civilian, federal court, would try Khalid Sheikh Mohammed, the avowed 9/11 mastermind, and four other alleged conspirators. The decision marks a sharp reversal of the administration’s policy position, a move some consider to be a concession to political opposition in the wake of the impending government shutdown and budget crisis, but in the announcement, both Attorney General Holder and President Obama reiterated their belief that federal court was the proper trial location. Nevertheless, “[justice for the families of those killed] must not be delayed any longer.” Attorney General Holder noted that the Justice Department was prepared to bring “one of the most well-researched and documented” cases in the his time as a prosecutor. Had the case proceeded in a civilian court, Holder stated that he was confident the justice system would have “performed with the same distinction that has been its hallmark for over 200 years.”
Back in 2009, Holder announced that the KSM and coconspirators trial would take place in New York, only a few blocks from the World Trade Center site. The plan drew widespread criticism from conservatives and members of the New York delegation, mainly due to the associated costs and security concerns. Among those weary of a New York trial were Former Mayor Rudy Giuliani and current Mayor Michael Bloomberg, both of whom especially worried about the potential security risks. On Monday, Mayor Bloomberg supported the administration’s decision, adding “I happen to think that it’s probably more appropriate to [have the trial] in a secure area with a military tribunal.”
In a manner somewhat reminiscent of a child who did not get his way but wanted to maintain he was correct, Attorney General Holder blamed Congress for forcing the administration’s hand, heavily criticizing legislation that prohibits bringing any detainees from Guantanamo Bay to the United States. All five indicted men are currently being held in Guantanamo, and thus, they are precluded by the legislation from being moved to a trial/prison in the United States. Attorney General Holder called the legislation “unwise and unwarranted,” and that it “undermines our counterterrorism efforts and could harm our national security. Decisions about who, where and how to prosecute have always been—and must remain—the responsibility of the executive branch.” Congress struck back the next day during a Congressional hearing. In his testimony, David Beamer, father of a passenger on United Flight 93, said, “the policies of this administration cause us all to grieve anew. Instead of swift justice, President Obama worries that a military tribunal will offend the Muslim world. What about the effect of this needless delay on the morale of the American people?” Even with the Congressional/public response, Attorney General Holder remained steadfast in his position that he knew best. “I know this case in a way that members of Congress do not,” he said. “Do I know better than them? Yes.” New York police Commissioner Ray Kelly estimated it would cost $200 million a year to provide security for a civilian trial that could last years and be more restrictive than a military trial.
Naturally, the decision drew mixed reactions, depending on the side of the political spectrum. Republican lawmakers applauded the decision, while Democratic leaders expressed disappointment. Senate Judiciary Chairman Patrick Leahy (D-VT) said, “I believe that our justice system, which is the envy of the world, is more than capable of trying high-profile terrorism and national security cases.” House Judiciary Committee Chairman Lamar Smith (R-TX) countered with “It’s unfortunate that it took the Obama administration more than two years to figure out what the majority of Americans already know: [KSM] is not a common criminal, he’s a war criminal.”
Also on Monday, U.S. District Judge Kevin Duffy dismissed the civilian indictment and unsealed the indictment, filed December 14, 2009, outlining the case. The indictment describes how the attacks were planned, practiced, and carried out by the hijackers, all at the orders of Osama bin Laden. Al-Qaeda leaders met in early 1999 to begin planning an attack aimed to cause “maximum casualties and destruction.” The first 9/11 hijackers are said to have arrived in January 2000. In late August 2001, KSM learned of the attack date and notified bin Laden. The 80-page document ends by listing the names of 2,976 victims on the four airplanes. Among the ten counts charged are: conspiracy to kill Americans, conspiracy to commit acts of terrorism, acts of terrorism, conspiracy to commit violent acts and destroy aircrafts, violence on and destruction of aircrafts, conspiracy to commit aircraft piracy, aircraft piracy, murder of a U.S. officer and employee, and destruction of commercial property.
The KSM-military tribunals decision and congressional legislation also call into question President Obama’s promise to close Guantanamo Bay. During his campaign, Obama attempted to separate himself from the questionable Bush War on Terror policies, namely focusing on the Cuban prison. Still, Guantanamo remains open, and Obama’s decision to try KSM by military tribunals appears as a “Bush-like” decision. Although Obama maintained that closing Guantanamo Bay remains among his top priorities, he seems to making relatively little effort towards accomplishing that goal and blaming Congress for the current stalemate. More than Obama’s merely inability thus far in carrying out his promises, the failure calls into question the logic behind such policy options. Some have argued that Obama believed that shutting Guantanamo would soften American’s image, thereby softening our enemies’ resolve. Nevertheless, recently released documents show that 2009 was the deadliest year in terms of terrorist attacks/threats since 2001, and Homeland Security Secretary Janet Napolitano recently commented that we’re at our “highest threat level” in years. No one knows yet how the administration will proceed in the upcoming campaign. With Guantanamo representing such a large, important part of the last election, Obama will likely not stay quiet on the issue. The question then becomes will he stay true to what he promised four years ago, or will he flip-flop to a more mainstream position to win votes.
 The four conspirators are Waleed bin Attash, a Yemeni who allegedly ran an al-Qaida training camp in Afghanistan; Ramzi Binalshibh, a Yemeni who allegedly helped find flight schools for the hijackers; Ali Abd al-Aziz Ali, accused of helping nine of the hijackers travel to the United States and sending them $120,000 for expenses and flight training, and Mustafa Ahmad al-Hawsawi, a Saudi accused of helping the hijackers with money, Western clothing, traveler’s checks and credit cards.