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Video: The Trial of Khalid Sheikh Mohammed

Statement of the Attorney General on the Prosecution of the 9/11 Conspirators Washington, D.C. ~ Monday, April 4, 2011

In November 2009, I announced that Khalid Sheikh Mohammed and four other individuals would stand trial in federal court for their roles in the terrorist attacks on our country on September 11, 2001.

As I said then, the decision between federal courts and military commissions was not an easy one to make.   I began my review of this case with an open mind and with just one goal:   to look at the facts, look at the law, and choose the venue where we could achieve swift and sure justice most effectively for the victims of those horrendous attacks and their family members.   After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court.   I stand by that decision today.

As the indictment unsealed today reveals, we were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators – one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor.   We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.   We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence.   Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue.   As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security.   Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch.   Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.   Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.   We will continue to seek to repeal those restrictions.

But we must face a simple truth:   those restrictions are unlikely to be repealed in the immediate future.   And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.   I have talked to these family members on many occasions over the last two years.   Like many Americans, they differ on where the 9/11 conspirators should be prosecuted, but there is one thing on which they all agree:   We must bring the conspirators to justice.

So today I am referring the cases of Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions.   Furthermore, I have directed prosecutors to move to dismiss the indictment that was handed down under seal in the Southern District of New York in December, 2009, and a judge has granted that motion.

Prosecutors from both the Departments of Defense and Justice have been working together since the beginning of this matter, and I have full faith and confidence in the military commission system to appropriately handle this case as it proceeds.   The Department of Justice will continue to offer all the support necessary as this critically important matter moves forward.   The administration worked with Congress to substantially reform military commissions in 2009, and I believe they can deliver fair trials and just verdicts.   For the victims of these heinous attacks and their families, that justice is long overdue, and it must not be delayed any longer.

Since I made the decision to prosecute the alleged 9/11 conspirators, the effectiveness of our federal courts and the thousands of prosecutors, judges, law enforcement officers, and defense attorneys who work in them have been subjected to a number of unfair, and often unfounded, criticisms.   Too many people – many of whom certainly know better – have expressed doubts about our time-honored and time-tested system of justice.   That’s not only misguided, it’s wrong.   The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice.   Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences.   There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.   Our national security demands that we continue to prosecute terrorists in federal court, and we will do so.   Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.

Finally, I want to thank the prosecutors from the Southern District of New York and the Eastern District of Virginia who have spent countless hours working to bring this case to trial.   They are some of the most dedicated and patriotic Americans I have ever encountered, and our nation is safer because of the work they do every day.   They have honored their country through their efforts on this case, and I thank them for it.   I am proud of each and every one of them.

Sadly, this case has been marked by needless controversy since the beginning.   But despite all the argument and debate it has engendered, the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points.   At the end of our indictment appear the names of 2,976 people who were killed in the attacks on that deadly September day nearly ten years ago.   Innocent Americans and citizens of foreign countries alike who were murdered by ruthless terrorists intent on crippling our nation and attacking the values that we hold dear.   This case has always been about delivering justice for those victims, and for their surviving loved ones.   Nothing else.   It is my sincere hope that, through the actions we take today, we will finally be able to deliver the justice they have so long deserved.

**********************************************************************

With a HT to Bobby Chesney, the indictment from SDNY can be found here, and the five-page nolle prosequi filing is here.  Professor Chesney provides the following summary:

* Brief overview of the KSM indictment

For those who want a quick overview of the just-unsealed and just-dismissed KSM indictment:

The defendants in the case were KSM, Walid Bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa al-Hawasi.  In late 2009, they were named in connection with the 9/11 attacks in the 14th Superseding Indictment in the case originally filed in 1993 in connection with the first World Trade Center plot.  That is the document unsealed this morning, and dismissed today in favor of military commission proceedings.  The following is a brief summary of the charges and allegations in the now-defunct indictment:

Factual Allegations

The indictment first mentions KSM, bin Attash, and al-Hawsawi earlier in connection with the general overview of AQ’s structure, stating that they participated in AQ’s “media committee.”  The indictment turns to their direct involvement in the 9/11 plot on p.11.  KSM is described as the “operational leader” of the plot.  Bin Attash is participating in the plot by “collecting information on matters related to airport and airplane security measures.”  Bin al-Shibh and Ali are described as facilitating the plot by sending money to the hijackers in the US.  Al-Hawsawi is described as a plot facilitator for helping to arrange the hijackers travel to the US and other logistics.

The enumeration of overt acts begins on p. 14.  Most if not all of it should be familiar in light of prior accounts such as that in the 9/11 Commission Report.  Somewhat interesting additional details that I do not recall seeing before include:

  • After the 9/11 attacks, bin Laden directed bin Attash to “travel to the Tora Bora region … and prepare the area by digging trenches and stockpiling food, weapons, and ammunition.” (para. 174).
  • Bin Laden videotaped a message the day before the 9/11 attacks, referring to all 19 hijackers by name and by “kunya.” (para. 179)
  • When KSM and al-Hawsawi were captured in March 2003, there were materials present “related to . . . the planning and execution of the September 11, 2001 attacks.” (para. 180)

Charges

Counts 1-9 were relatively conventional charges stemming directly from the 9/11 plot:

Count 1 – Conspiracy to Commit Acts of Terrorism Transcending National Boundaries (18 USC 2332b)

Count 2 – Acts of Terrorism Transcending National Boundaries (same)

Count 3 – Conspiracy to Commit Violent Acts and Destroy Aircraft (18 USC 32)

Count 4 -  Violence on and Destruction of Aircraft (same)

Count 5 – Conspiracy to Commit Aircraft Piracy (49 USC 46502)

Count 6 – Aircraft Piracy (same)

Counts 7 and 8 – Murder of United States Officers and Employees (18 USC 2, 18 USC 1111, 18 USC 1114)

Count 9 – Destruction of the Twin Towers (18 USC 844(i), and 18 USC 2)

Count 10 was different.  Titled “Al Qaeda Conspiracy to Kill Americans,” count 10 asserted a violation of 18 USC 2332.  In relevant part, § 2332 makes it a crime for persons outside the United States to conspire to kill US nationals.  In contrast to the 9/11-focused charges in Counts 1-9, this charge explicitly focused on the proposition that al Qaeda can be conceived as an overarching conspiracy to kill Americans wherever Americans may be found.  Consistent with that lens, Count 10 not only incorporated by reference all the prior allegations relating to the 9/11 plot, but also a handful of additional allegations not directly linked to 9/11, including:

  • KSM in 1999 went with bin Laden to a Kabul-area terrorist training camp
  • KSM in 2000 discussed potential American targets in Australia
  • Bin Attash in 2001 served on bin Laden’s security detail
  • KSM and Ali in late 2001 plotted to attack US-bound planes with shoe bombs
  • Bin Attash while in Pakistan in April 2003 “possessed approximately 400 to 500 kilograms of explosives to be used to attack Americans”.

Special Findings

The indictment concluded with a series of “special findings” allegations required for seeking the death penalty, though only in relation to counts 1-9.

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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.