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Obama 'Straddling Debate' on Prosecuting 9/11 Prisoners

Interviewee: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
Interviewer: Bernard Gwertzman, Consulting Editor
November 15, 2009

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The Obama administration announced on November 13 that Khalid Sheik Mohammed and four of his 9/11 co-defendants would stand trial in a federal court in New York. By contrast, Abd Al-Rahim Al-Nashiri and four co-conspirators in the 2000 USS Cole attack in Yemen will be tried by a military commission. In sending the trials to different courts, the administration has "straddled the debate" over which is the appropriate legal venue, says Matthew C. Waxman, a CFR adjunct senior fellow who served in the Pentagon as an adviser on detainees in 2004-2005. Waxman says the Obama administration has "distanced itself from some of the most aggressive legal claims of the Bush administration" by saying it plans to use federal courts when possible. However, it has also left open the possibility of continuing to hold some Guantanamo detainees without trial and intends to send some to military commissions--a stance likely to be attacked by civil liberties groups.

The†announcement that Khalid Sheik Mohammed will be tried in federal court in New York rather than before a military commission came as a surprise to news organizations. But was this a surprise to you and other people watching the issue?

President Obama and his team have made clear that they intended to use the criminal justice system more aggressively to prosecute terrorists than the Bush administration did. But it does mark a shift from the Bush administration, which generally argued that the detainees at Guantanamo should neither be brought to the United States nor prosecuted in federal court; instead the Bush administration relied on its assertive authority to detain enemy combatants without trial, or to prosecute them in specially convened military tribunals, the so-called Military Commissions.

It seems to make some sense to try these people in a federal court. After all, they are accused of conspiring in the 9/11 attacks, which destroyed the World Trade Center, killing nearly 3,000 people. What was the Bush administration's argument against trials in federal court?

Part of what's at stake is a fundamental debate about whether the problem of terrorism is that of a crime that should be combated by the criminal justice system or is one of war that should be combated with the tools of warfare. The Bush administration took the approach that they were at war with al-Qaeda, and therefore al-Qaeda agents could be captured and held as enemy combatants without trial, pursuant to the laws of war. Many critics of the Bush administration asserted that the only legitimate grounds on which to hold somebody long term is by prosecuting him.

You mean sort of like the Nuremburg trials?

No, no. I was actually thinking that many Bush administration critics thought that the only legitimate legal avenue to detaining individuals long term is to prosecute them in regular criminal courts. So far, the Obama administration has straddled the debate. On the one hand, it has sort of distanced itself from some of the most aggressive legal claims of the Bush administration and said that when possible, it plans to use the federal criminal courts. But, on the other hand it has left open the possibility of holding some Guantanamo detainees for the long term without trial, and it has also said that it intends to send some of them to military commissions. In fact, Attorney General Eric Holder combined his announcement of sending Khalid Sheik Mohammed and his co-defendants to the federal court in New York with an announcement that Abd al-Rahim al-Nashiri, who attacked the USS Cole, and four others would be tried by military commissions.

Discuss the difference between a military commission and a federal court.

There's a long American history of using military commissions, which are specially convened tribunals of military officers to prosecute war criminals during ongoing armed conflicts. The Bush administration originally asserted that military commissions, or specially convened military courts, were a more appropriate venue for prosecuting al-Qaeda terrorists for two reasons. One was an argument about principle: that these were not ordinary criminals who deserved the full benefit of our regular criminal justice system. And the Bush administration wanted to emphasize that it was taking wartime measures. So that's the argument about principle. The other argument was one about practicality and that argument said that bringing prosecutions against al-Qaeda agents and leaders in regular federal court would be problematic because of the type of evidence that would need to be relied on, and the need to safeguard sensitive intelligence from disclosure during trial. So the Bush administration argued that military commissions could be conducted pursuant to rules designed to deal with the special complexities of terrorism cases.

But then why will some of these defendants at Guantanamo be brought to trial before commissions?

That's why I say the Obama administration has really straddled this debate--whether the appropriate forum for adjudicating Guantanamo cases is a civilian criminal justice system, or a system built upon the laws of war. The Obama administration has argued that it's appropriate to use both of them and to make decisions on a case-by-case basis about whether to send an individual to trial in our civilian system, or to continue holding them under some other legal authority based on the laws of war.

You indicate there are differences of evidence allowed. Could a person be found guilty in a federal court and innocent by a military commission or vice versa?

That's possible. The Obama administration, like the Bush administration before, is going to argue that military commissions are perfectly fair, and that military commissions use different rules of procedure and evidence--but not necessarily inferior ones to civilian courts. That said, among the differences will be different rules for handling hearsay, different standards for admissibility of certain kinds of evidence, and different provisions for handling sensitive intelligence information.

When Attorney General Holder spoke to reporters he said Khalid Sheik Mohammed would be tried in federal court because the crimes he's accused of committing took place in New York among other places, whereas the people being brought before the military commission--such as Abd al-Rahim al-Nashiri--executed his crime outside of the United States. So therefore the military commission is justified. Do you agree with that?

Certainly the Obama administration is going to continue to try to draw some principled distinctions among these cases, but I'm not sure those distinctions will stand up over time. Ultimately the Obama administration is likely to get some intense criticism from those who say that any secondary system of justice outside of the criminal justice system is going to lack the legitimacy ultimately necessary to bringing justice and holding perpetrators accountable.

In other words the American Civil Liberties Union (ACLU) and groups like that which have opposed these military commissions will continue to?

I would expect to see a lot of vocal criticism of Obama's decision to keep military commissions open as an option for prosecuting Guantanamo detainees.

Khalid Sheik Mohammed underwent water boarding, which many people describe as torture, others not. If his defense raises this in a federal court, does this mean his admissions would be thrown out? How do the rules of evidence operate?

That's certainly going to be an issue, and the Obama administration is probably going to say it's relying on no evidence that was derived from water boarding, which the administration has characterized as torture. Since coming into office, it has sent so-called "clean teams" of investigators to Guantanamo essentially to build a new criminal case so that prosecutors would not have to rely on evidence or confessions obtained through the use of water boarding, or other similarly aggressive interrogation techniques. I assume one argument that the defense might raise is that the conditions of Khalid Sheik Mohammed's confinement, the interrogation techniques to which he was continually subjected essentially inherently taint any prosecution at this point, or at least render unreliable any statements he might have made since then.

Back when he was going to be tried by a military commission, Khalid Sheik Mohammed insisted on pleading guilty, right?

He may do that, and the government may be hoping to get a similar plea from him this time. Khalid Sheik Mohammed has generally taken opportunities to boast and brag about his leadership in al-Qaeda and his involvement in 9/11 as well as a lot of other terrorism attacks and plots, so he may do that again. One feature of our criminal justice system is that it involves a lot of uncertainty. And so, it's unclear at this point how this prosecution will play out.

The broader question is--and you've written about this yourself--when President Obama came into office he pledged he would close Guantanamo in a year, January 22. Now it does not appear to be the case. Is this a big deal?

The latest announcements are a significant but small step toward the ultimate goal of closing Guantanamo. There remain close to two hundred more detainees whose disposition hasn't yet been decided or announced, and the Obama administration has left many questions unanswered about how it's going to close Guantanamo. I'd say at this point, it's virtually impossible for it to meet its own deadline of January to close Guantanamo, and I'd expect it to miss that deadline by a wide margin.†

Members of Congress and the Senate have expressed concern about security threats to New York by having a trial here. And of course the justification is that we've had other terrorist trials earlier. You can't predict, but is there really a threat?

Certainly there's going to be intense criticism and concern about bringing any Guantanamo detainees into the United States; there will be a severe "not-in-my-backyard" reaction among many members of the public, many members of Congress. On the other hand, as you say the challenge of providing security for high-profile terrorism cases, and then securing terrorists after trial are not new challenges. These are challenges we've faced before; we've faced even here in New York on a number of occasions, and I'm confident our system is up to the task.

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