Attorney General Eric Holder Jr. said today he has little choice but to abandon the civilian criminal case against alleged 9/11 mastermind Khalid Sheikh Mohammed and four others, after a congressional ban on the use of federal funds to transfer them from Guantánamo Bay, Cuba.
Holder said at a televised news conference — and DOJ officials made official in court filings — that he reluctantly has decided to transfer the case to the U.S. Department of Defense, allowing for military commission trials to proceed at the Guantánamo prison. That is a reversal from a position Holder announced in November 2009, when he planned to prosecute the five men in federal court in Manhattan.
The reasons for the reversal are practical, Holder said. He cited the provision in a defense-related spending bill that became law in December, over his objections, and he said justice requires that the case move forward in some venue.
“That justice is long overdue, and it must not be delayed any longer,” he said.
Still, Holder stood by his previous decision and said the Justice Department had a “powerful case” against the five men. He said he had been examining potential trial venues outside Manhattan, including a prison in Otisville, N.Y., until Congress restricted his options.
Click here (PDF) for a copy of the unsealed, 81-page indictment of the five alleged terrorists.
Asked whether members of Congress and the public should not have a say in the trial, Holder said decisions about where to prosecute belong in the executive branch of government. “I know this case in a way that members of Congress do not. I’ve looked at the files. I’ve talked to the prosecutors," he said. “So do I know better than them? Yes.”
Court filings today reiterate Holder's statement on moving the cases. “In light of this opposition by Congress to a federal criminal prosecution, the government does not believe there is any reasonable likelihood that the defendants will be tried in this forum in the near future,” the department said in an order dismissing civilian charges.
The five-page order (PDF) goes on to suggest that DOJ officials did not want to try to outwait the opponents of a civilian trial.
“Both the public generally, and the victims of the terrorist attacks of September 11, 2001, and their families specifically, have a strong interest in seeing the defendants prosecuted in some forum,” the order says. “Because a timely prosecution in federal court does not appear feasible, the Attorney General intends to refer this matter to the Department of Defense to proceed in military commissions.”
The order was signed by U.S. Attorneys Preet Bharara of the Southern District of New York and Neil MacBride of the Eastern District of Virginia, and it was approved by Senior U.S. District Judge Kevin Duffy of the Southern District of New York.
Holder’s decision comes one day before the House Judiciary Committee is set to hold a hearing on the use of civilian courts to try alleged terrorists. Families of 9/11 victims have been scheduled to testify. In a statement today, Rep. Lamar Smith (R-Texas), the committee’s chairman, said the administration should have turned to military commissions sooner.
“It’s unfortunate that it took the Obama administration more than two years to figure out what the majority of Americans already know: that 9-11 conspirator Khalid Sheikh Mohammed is not a common criminal, he’s a war criminal,” Smith said.
Sen. Chuck Schumer (D-N.Y.) said in a statement that the idea of holding a trial in New York, as Holder proposed in 2009, had been “wrong-headed.” He added, “I have always said that the perpetrators of this horrible crime should get the ultimate penalty, and I believe this proposal by the administration can make that happen.”
Updated at 2:37 p.m. with Holder's comments.