On November 13, 2009, the Department of Justice and Department of Defense issued joint decisions as to the forum, or the type of criminal trial that would hear the prosecution of ten detainees at Guantanamo Bay. Those ten detainees include five detainees accused of conspiring to commit the September 11, 2001 terror attacks and a detainee accused of orchestrating the attack on the USS Cole. The press release announced that five would be tried in federal court and five would be tried before military commissions.
“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.” Defense Secretary Robert Gates said “bringing terrorists to justice is an integral part of our national security. The reform of Military Commissions and today’s announcement are important steps in that direction.”
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 September 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.
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Once federal charges are brought against these detainees, military commission charges now pending against them will be withdrawn.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 of Defense, 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.
The Attorney General and the Secretary of Defense 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.
Carlos L. McDade, Esq.
Colonel (Retired), USAF
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