WASHINGTON — In an about-face on the day President Barack Obama announced his reelection bid, a U.S. official said Monday that Attorney General Eric Holder will order military trials at Guantánamo for confessed 9/11 mastermind Khalid Sheikh Mohammed and other alleged co-plotters now held there for the mass murder of thousands on Sept. 11, 2001.
Holder had sought to try the five men in civilian court in Manhattan, a move that produced an outcry from politicians and some 9/11 families who feared that the alleged al Qaeda insiders would turn the case into a forum for promoting their cause.
The attorney general said at an afternoon news conference that he was prepared to prosecute the case in New York and, in a surprise, released a secret 81-page federal grand jury indictment. But he blamed a ban by Congress on moving Guantanamo captives to U.S. soil even for trials, saying it made it unlikely they would be tried anytime soon in the United States.
A motion filed in federal court in New York requesting that the indictment be dismissed made a similar point. "In light of this opposition by Congress to a federal criminal prosecution, the government does not believe there is any reasonable likelihood that the defedants will be tried in this forum in the near future," the motion to the court said. "Because a timely prosecution in federal court does not appear, the attorney general intends to refer this matter to the Department of Defense to proceed in military commissions."
At the Pentagon, the chief war crimes prosecutor, Navy Capt. John F. Murphy, said his lawyers would prepare charge sheets against Mohammed, Ramzi bin al Shibh, Walid bin Attash, Ammar al Baluchi and Mustafa Hawsawi, all at Guantánamo since September 2006.
But Murphy declined to say whether he would seek the death penalty in the case, as the war crimes prosecutors had done during a since withdrawn Bush era prosecution.
White House Press Secretary Jay Carney said "congressional opposition" to the Obama administration's plans for closing Guantánamo and related issues had created some obstacles.
Many members of Congress praised the decision, though that opinion was not universal.
“I am disappointed with the decision not to prosecute Khalid Sheikh Mohammed in a federal court," said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee. " 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. Federal courts have convicted hundreds of terrorists. The record in military commissions pales in comparison, with only a handful of convictions, and the ground rules still in flux."
Some Republicans used the decision to slam holder and defend President George W. Bush's Guantanamo policies.
“As I have been saying since day one, these terror trials belong in a military commission at Guantanamo," said Rep. Peter King, a New York Republican and chairman of the House Homeland Security Committee/ "I am absolutely shocked that it took Attorney General Holder 507 days to come to this realization.
“Today’s reversal is yet another vindication of President Bush’s detention policies by the Obama Administration, and is welcome news to the families of the victims of the 9/11 terrorist attacks, who will finally see long-awaited justice," King said in a statement.
The American Civil Liberties Union executive director blamed "politics" for Holder's decision. "It's devastating to the rule of law," said Anthony Romero, adding that "the very Defense Department that enabled the torture is now going to be the adjudicator of justice."
Congress has passed legislation forbidding civilian trials for the men and new legislation would make it even more difficult to move the men to a federal jurisdiction. Some critics of the war court have also suggested that the case could be tried more easily at the war court in southeast Cuba before a military judge and jury because CIA agents had waterboarded Mohammed secretly overseas before transferring him to Guantánamo.
Changes in the way military commissions are conducted also might move the cases more quickly because the men might be permitted to plead guilty to orchestrating the 9/11 attacks even before a military jury, called a commission, is empaneled.
It was a huge about-face by Obama, a former constitutional law professor. As a senator and candidate he derided the military commissions and then worked as a president to reform them.
At Guantanamo, where President George Bush sent the 9/11 plotters for trial, Mohammed, 45, bragged to a military panel that he masterminded "from A to Z" the four aircraft hijackings that struck the World Trade Center, Pentagon and a Pennsylvania field. Then, at an earlier effort to try him at military commissions, Mohammed fired his attorneys and sought to orchestrate a group guilty plea for himself and four others.