The Obama Administration, claiming that Congress has tied its hands, will take out of the civilian courts and put into military commissions the criminal cases against the five individuals claimed to have planned the terrorist attacks of Sept. 11, 2001, Attorney General Eric H. Holder, Jr., announced on Monday.  Decrying legislative restrictions as frustrating prosecutors’ traditional authority to decide when and where to bring cases, Holder said Congress had left no choice — if prosecutions were to be pursued — but to take the individuals’ cases to a commission trial, at Guantanamo Bay, Cuba.

Although the commission system has suffered numerous setbacks and misfires since President George W. Bush first set them up under presidential order (and Congress rescued them with a new law after the Supreme Court struck down the Bush version), President Obama and his aides have insisted that the now-revised system must remain as one alternative to try those accused of terrorism.  But the Administration earlier had made plans to try the six alleged 9/11 co-conspirators in a federal courthouse in New York City, under an existing indictment, issued under seal in December 2009 and made public Monday after it had been dismissed.  That idea was abandoned under pressure from New York officials and members of Congress, and Congress more recently has forbidden such a case on U.S. soil.

Now, the attorney general announced, the civilian indictment has been dismissed, and new charges will be filed in the Pentagon’s military commission system.  A statement by the attorney general is here; a federal judge’s order of Monday dismissing and making public the ten-count indictment is here, and a Justice Department news release is here.   (The indictment is 81 pages long; 36 pages are devoted to listing the names of the 2, 976 individuals who died in the 2001 attacks.)

The five individuals are Khalid Sheikh Mohammed, said to be the mastermind of the 2001 attacks; Walid Bin Attash, Ramzi Bin Al-Shibh, Ali Abdul Aziz Ali, and Mustafa Al-Hawasawi.  All are now held in a high-security section of the Guantanamo prison, run by the military on a U.S. naval base on the island of Cuba.

In making public the prior indictment against those five, Holder said the Justice Department was “prepared to bring a powerful case” against the five; he said it was “one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor.”  All of the evidence gathered to support that prosecution, of course, will now be available to military prosecutors at Guantanamo.  There could be added evidence, since the rules for what can be used in a commission trial are more prosecution-favorable than in a civilian trial setting.

The potential civilian case, Holder told reporters, was being abandoned because it was unlikely that the congressional restrictions — barring the use of any Pentagon funds to bring the 9/11 defendants into the U.S. for trial — would be repealed “in the immediate future,” and prosecution could not wait “any longer.”

Posted in Cases in the Pipeline, Detainee Litigation

Recommended Citation: Lyle Denniston, Giving up on civilian trials on 9/11, SCOTUSblog (Apr. 4, 2011, 1:13 PM),