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Khalid Sheikh Mohammed and four other detainees to be tried in Federal District Court

Khalid Sheikh Mohammed

Khalid Sheikh Mohammed

Here is the Press Release:

Departments of Defense and Justice Announce Forum Decisions for Ten Guantanamo Bay Detainees

The Departments of Defense and Justice today announced forum decisions for ten detainees at Guantanamo Bay whose cases were previously charged in military commissions, including five detainees accused of conspiring to commit the Sept. 11, 2001 terror attacks and a detainee accused of orchestrating the attack on the USS Cole.

“Bringing terrorists to justice is an integral part of our national security,” said Defense Secretary Robert M. Gates.  “The reform of Military Commissions and today’s announcement are important steps in that direction.”

“Today we announce a step forward in bringing those we believe were responsible for the 9/11 attacks and the attack on the USS Cole to justice,” said Attorney General Eric Holder.  “For over two hundred years, our nation has relied on a faithful adherence to the rule of law to bring criminals to justice and provide accountability to victims.  Once again we will ask our legal system to rise to that challenge, and I am confident it will answer the call with fairness and justice.”

The Attorney General, in consultation with the Secretary of Defense, has determined that the United States government will pursue a prosecution in federal court against five detainees who are currently charged in military commissions with conspiring to commit the Sept. 11, 2001 terror attacks, which killed nearly 3,000 individuals.  These detainees are Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi.

The Department of Justice intends to pursue a prosecution against these five individuals in the Southern District of New York as soon as possible.  Prosecution of these detainees will be co-managed by teams from the Southern District of New York and the Eastern District of Virginia.  These detainees will be transferred to the United States for trial after all legal requirements, including a 45-day notice and report to Congress, are satisfied, and consultations with state and local authorities have been completed.  The detainees will be housed in a federal detention facility in New York, which includes maximum security units that have securely held terrorism suspects in the past.   Once federal charges are brought against these detainees, military commission charges now pending against them will be withdrawn.

The Attorney General has also determined, in consultation with the Secretary, that the prosecutions of five other Guantanamo Bay detainees who were charged in military commissions may be resumed in that forum.  These detainees include the detainee accused of orchestrating the October 2000 attack on the USS Cole, which killed 17 U.S. sailors and injured dozens of others, and a detainee who is accused of participating in an al-Qaeda plot to blow up oil tankers in the Straits of Hormuz.

Secretary Gates and Attorney General Holder are confident that detainees now held at Guantanamo Bay can be detained securely in U.S. detention facilities and that their trials can be conducted effectively and safely in the United States, whether in federal court or in a military commission.

Over the past decade, the Department of Justice has successfully prosecuted many terrorism defendants in our federal courts.  Today, there are more than 200 inmates who have a history of or nexus to international terrorism, who have been convicted in federal courts, and are now housed securely in Bureau of Prisons facilities.  The Department has already transferred one former Guantanamo Bay detainee, Ahmed Ghailani, to the Southern District of New York to face trial for his alleged role in the 1998 East Africa Embassy bombings.

With regard to military commissions, the reforms Congress recently adopted to the Military Commissions Act will ensure that commission trials are fair, effective, and lawful.  Military commissions have been used by the United States to try those who have violated the law of war for more than two centuries.   Further, the U.S. Supreme Court recognized in Hamdan v. Rumsfeld Congress’ power to determine the need for military commissions and to provide their jurisdiction and procedures, and this Congress has recently reiterated its support for commissions in adopting important reforms to the Military Commissions Act.

Finally, the Secretary and Attorney General understand and share the concern of the victims of terrorist attacks about the length of time it has taken to bring the perpetrators to justice.  Justice has been delayed far too long.  Prosecutors in both departments are committed to moving forward with all these cases as quickly as possible and to working together to see that justice is served, consistent with our nation’s values.

The Statement of the Attorney General can be found here and the video of the press conference here.

A couple of quick comments.

First, I believe it is good that these five will be tried in the Southern District of New York. I think that sets a good precedent for future trials. It will, of course, be interesting to see how much of the evidence against these men will need to be excluded due to coercive measures that do not stand up in Federal courts.

Second, I am still troubled by the continuing endorsement of the military commissions. While I believe the new law is an improvement over the Military Commissions Act of 2006, I still think that some of the provisions will not past constitutional muster.

Third, I found the short comment  Professor Bobby Chesney sent around to his list-serve interesting:

DOD and DOJ today jointly announced that these five individuals will be tried in the Southern District of New York, with prosecutors from both SDNY and the Eastern District of Virginia will “co-manage” the case (an interesting resolution of the reported inter-office tug-of-war to get this case). . . . . It appears the men will be held pending trial at the Metropolitan Correctional Center in Foley Square (adjacent to the courthouse and SDNY offices), just as Ramzi Yousef and other terrorism-related defendants have been held in the past.   It will be interesting to see which SDNY judge draws the case.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.