Kuwait Times

Published Date: November 17, 2009
By Mike McCarthy

By transferring the case against the alleged plotters of the Sept 11, 2001 terrorist attacks, US President Barack Obama is gambling that a civilian instead of military trial will go a long ways toward lifting the stain of the legal proceedings undertaken so far at Guantanamo Bay, Cuba. But the move also poses risks that could come back to haunt Obama as he tries to close the controversial prison facility and win the larger war on terrorism.

The granting of a public trial in New York provides Khalid Sheikh Mohammed, the admitted mastermind of the attacks that killed 2,973 people, and his four co-defendants the same rights provided to other civilian felons in a court of law. Mohammed will surely use the spotlight to make political statements against the United States while praising Al-Qaeda and the Islamist extremism movement against the West, as he has done in earlier proceedings in the military commissions at Guantanamo.

Mohammed has already declared that he wants to be executed so he can be martyred in the name of Islam, comments that could boost Al-Qaeda's recruitment efforts. Making the announcement Friday, Attorney General Eric Holder said he will direct prosecutors to seek the death penalty for all five suspects.

A public trial could also become more embarrassing for the United States after years of allegations that suspects at Guantanamo and other locations around the world were abused or tortured. His lawyers will likely argue that any evidence obtained through harsh interrogations should not be permitted. The US government has already admitted that Mohammed was waterboarded 183 times while in CIA custody in a secret prison before he and the other alleged co-conspirators were moved to Guantanamo.

In addition, the standard to win convictions in a federal court is tougher than the military commission originally establish by George W Bush. Obama has embraced a reformed version of the commissions geared toward providing defendants with greater rights. During the military commissions at Guantanamo, a military judge had the option of pushing a button to mute the audio in the event national security secrets arose, blocking journalists, civil rights observers and 9-11 families from hearing the sensitive in
formation.

That won't be an option in federal court, meaning prosecutors will have to strike a balance between their desire to win convictions versus the risks posed by making sensitive information public. Before making the announcement Friday, the Justice Department may have already concluded that it has sufficient, untainted evidence to convict the five men without compromising national security. But at the same time, lawyers for Mohammed and the other four men could potentially tie the process up by demanding a ri
ght to view and make classified evidence public.

The decision to transfer the Sept 11 case from Guantanamo to New York is a big step toward achieving the goal of closing the prison facility, which has badly damaged US credibility in the eyes of the world. US officials, however, have already acknowledged that meeting the Jan 22 deadline for doing so is unlikely. There are still 215 detainees held at Guantanamo.

Obama's order to close Guantanamo shortly after he took office was warmly welcomed overseas and seen as big step toward repairing America's image. But civil rights groups have noted a series of setbacks since the announcement. Biggest of all they point to Obama decision to continue with the revamped military commissions, which have gained only three convictions while charged detainees have been held for years.

Holder said Friday that five other prisoners will be tried under the commissions, including a key suspect in the Oct 2000 bombing of the USS Cole in a Yemeni port. The American Civil Liberties Union wants all of the trials to take place in civilian courts.

It's disappointing that the administration has chosen to prosecute some Guantanamo detainees in the unsalvageable military commissions system," the ACLU said. - dpa