The 9/11 Trial Timewarp: It’s February 2008 Again


On Tuesday, the Pentagon issued a press release announcing that prosecutors in the Office of Military Commissions at Guantánamo had sworn charges against five prisoners: Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid Bin Attash, Ali Abd al-Aziz Ali and Mustafa al-Hawsawi.

Accusing the five men of being “responsible for the planning and execution” of the 9/11 attacks, the Pentagon added that the eight charges are “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.”

As the Pentagon proceeded to explain, subject to approval by the Commissions’ Convening Authority, Retired Vice Adm. Bruce MacDonald, prosecutors recommended that the charges “be referred as capital.”

Anyone paying attention will realise that we have been here before, on February 11, 2008, when the Pentagon announced that Khalid Sheikh Mohammed and the the four others named above (plus a sixth man, Mohammed al-Qahtani, against whom the charges were later dropped) were charged with “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism” — and four of them were, in addition, charged with “hijacking or hazarding a vessel.”

Astute readers will also recall that 18 months ago, on November 13, 2009, Attorney General Eric Holder announced that the five men charged on Tuesday would be tried in federal court rather than in a Military Commission at Guantánamo. Holder confidently told the nation, and the wider world:

After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.

I also want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties.

To critics of the Military Commissions (and there were many), Holder’s decision to pursue the alleged 9/11 co-conspirators in federal court was a principled and appropriate endorsement of federal court trials as the correct venue for terrorist trials. The Commissions, revived by Vice President Dick Cheney in November 2001, had been designed to lead to the swift executions of those seized — and, in many cases, tortured — in the “War on Terror,” and although the Supreme Court had ruled them illegal in June 2006, they had been revived by Congress.

There, lawmakers, adhering to the same flawed rationale of the “War on Terror” as the Bush administration — namely, that terrorists were actually “warriors” — invented war crimes for a revived version of the Commissions that first surfaced in the fall of 2006, and was then revived for the Obama administration in the summer of 2009.

Unfortunately for Holder, who believed — correctly, in my opinion — that trying Khalid Sheikh Mohammed in a courtroom would be “the defining event of my time as Attorney General,” and that “History will show that the decisions we’ve made are the right ones,” the decision to revive the Commissions, as well as endorsing federal court trials, fatally muddied the waters.

Holder looked rather foolish when, at the same time as announcing that KSM and his alleged co-conspirators would be tried in federal court, he also stated that five other prisoners would face trials by Military Commission, but, more importantly, the administration’s ambivalence — and its refusal just to focus on federal court trials — gave critics the option of pushing to shut off federal court trials while advocating for Military Commission trials at Guantánamo instead, and this is exactly what happened.

A cynical movement to stir up hysteria regarding a federal court trial in New York was so successful that the White House backed off, allowing lawmakers the opportunity to insert a provision into a military spending bill before Christmas last year that prevented President Obama from bringing any Guantánamo prisoner to the US mainland to face a trial, and which, to rub salt into the wound, explicitly mentioned Khalid Sheikh Mohammed by name.

Faced with this rebellion, Obama refused to consider a veto or a signing statement, meaning that the only viable option for a trial would be at Guantánamo, as the cheerleaders for the Commissions always intended.

Eric Holder failed to disguise his disappointment when, on April 4, he announced the decision to proceed with a Military Commission trial. In a speech full of criticism, he told lawmakers:

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.

Tuesday’s announcement, therefore, provides nothing to celebrate — just a confirmation of President Obama’s failures to seriously tackle his critics when it comes to “national security” issues, which has been repeated over and over again in the last two years.

For Eric Holder, the disappointment is far greater, as he is on record as noting that history will judge him on how he deals with Khalid Sheikh Mohammed and his alleged co-conspirators. However, Holder is not the only loser. The administration, Congress, and the American people who, in large numbers, have allowed themselves to be seduced by the poisonous rhetoric of the Bush administration’s “War on Terror” have also lost, for the simple reason that Military Commissions remain a shameful, sub-standard venue for trials as important as these.

Contrary to the rhetoric of those endorsing the Commissions, the last thing the relatives of those who died on September 11, 2001 need is for the alleged perpetrators to be prosecuted in a chaotic kangaroo court. However, nearly ten years after the attacks, justice — fair, transparent justice, with a long historical pedigree — remains sidelined, bullied into submission by those who, still driven by vengeance, want the perpetrators to be “warriors” rather than what they were — mass murdering criminals, who do not deserve to be able to usurp the rhetoric of this phoney war for their own ends.

As published exclusively on the website of the Future of Freedom Foundation.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

23 Responses

  1. gregorylent says...

    it doesn’t matter … stirring a pot of waste, even if you call it soup, is pointless reporting. time to report on alternatives.

  2. Andy Worthington says...

    On Facebook, George Kenneth Berger wrote:

    I’ll digg and share later, Andy.

  3. Andy Worthington says...

    Thanks, George!

  4. Jeffrey Kaye says...

    Great article, Andy, and very sad, infuriating times. I’ll be having more to say about the 9/11 attacks very soon, but as for Eric Holder, his place in history is already weighted down with the cement encased about his feet that is the refusal to lead his department in the prosecution or even actual investigation of Bush-era torturers.

    One last thing, re the five indicted men: I would not be so quick to label them as criminals. They may very well be as the government and press have portrayed them over the years, but that’s why we have a court with a jury to sit as triers of fact. I’ve very little reason to trust the U.S. government, and I think we need a full examination of all the facts before any final characterizations are made.

    And then there is the brutal irony that a government that itself is responsible for so many crimes, far more fatal and far-reaching than what these men allegedly did, is allowed to sit in judgement upon them. The crimes of 9/11 are overshadowed by those of aggressive and illegal war, the invasion of Iraq that resulted in the deaths of anywhere from 100,000 to over one million people, and the injury and displacement of millions more. When will the criminals involved in this crime be brought before the bar of justice?

  5. Jeffrey Kaye says...

    As an example of what is known and not known about the attacks upon the World Trade Center, I suggest readers look back to articles from the early 1990s, showing that the FBI had an asset working right at the heart of the 1993 bombing conspiracy, and pulled him out (to his protest) and let the bombing proceed.

    See the following New York Times articles from that time (history in our modern historical times equals forgetfulness):

  6. Andy Worthington says...

    Great to hear from you, Jeff.
    Re: criminals — yes, my apologies. I should have inserted the word “alleged” in there somewhere. And thanks for those interesting links …
    And as for the US government’s crimes, I share your frustration, as you know, but accountability seems further away than ever, unfortunately.
    Difficult times.

  7. Andy Worthington says...

    George Kenneth Berger wrote:

    I just shared this Andy. A bad day for proper judicial procedure, a ‘good’ day for moral cowardice.

  8. Andy Worthington says...

    Thanks, George. Yes, a spot-on analysis. I only wish, to be honest, that more people were interested. I feel that Guantanamo fatigue is becoming deeply engrained, and I’m not sure what — if anything — I can do about it.

  9. Andy Worthington says...

    George Kenneth Berger wrote:

    Please don’t give up, Andy, if only for the historical record. Speaking of which, I must still see about publishing at History News Network. My sole excuse is fatigue induced by medication designed for just that purpose. No choice, of course.

  10. Andy Worthington says...

    No don’t worry, George. I won’t be giving up. I fully intend to keep plugging away, and intend to analyze all the Detainee Assessment Briefs released by Wikileaks over the rest of this year, to build up the most comprehensive analysis of the prisoners to date. However, I do want to make sure that I have time for other topics as well. In the last six weeks, as I’ve focused almost exclusively on Guantanamo, I’ve missed covering the Middle East and UK politics in any depth, and when I began doing so it was a breath of fresh air after five years in which my only distractions were the closely related areas of UK anti-terror policies, Bagram and secret CIA prisons!

  11. Andy Worthington says...

    George Kenneth Berger wrote:

    I can well imagine that. My interest started when I heard a BBC 4 radio program about Rendition. It must have been in 02 or 03.

  12. Andy Worthington says...

    That was early, George! I was certainly worried early on, but it was when the first British prisoners were released, in March 2004, that I really began paying attention. And then the Abu Ghraib photos were released, which should really have brought down the Bush administration, but the cynical “bad apples” theory got in the way.
    I was particularly inspired by a couple of books that I reviewed in 2005 for the Nth Position website — one a biography of Dick Cheney by the nation’s Jihn Nichols, and the other an analysis of Abu Ghraib (with supporting documents) by Mark Danner:

  13. Andy Worthington says...

    George Kenneth Berger wrote:

    There was also a New Yorker article on Rendition, but I don’t remember when that was. I googled a lot, but my first related book was McCoy’s. The mention of Hebb (of McGill) there really started me going, because he is revered among philosophers and psychologists. His role was at least as academic organiser of a British, Canadian, American meeting, to discuss the future torture program. But his possible other activities are obscure. As a philosopher with an interest in Hebb’s work, I got yet more incensed. Moreover, the thought of being confined in any way against my will, enrages me.

  14. Andy Worthington says...

    Thanks, George. If I had the time, I’d look further into this, inspired by your mention of Donald O. Hebb and the origins of the torture program. I wonder if my good friend Jeff Kaye has anything to add?
    For others’ interest, I should explain that McCoy refers to Alfred McCoy, and, I’m presuming, his 2006 book, A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror:

  15. Andy Worthington says...

    Neil Goodwin wrote:

    well done andy! it is a difficult path to tread, and the feeling that you aren’t getting anywhere after so many years must cut deep. but remember who controls this illusion – fox and co. and remember that things can change in the blink of an eye. you are closer than you think, and there are many that stand alongside you, pointing fingers and keeping the faith. xx

  16. Andy Worthington says...

    Thanks, Neil. Wonderfully supportive words, my friend. I hope all is well with you.

  17. Andy Worthington says...

    Christine Casner ‎wrote:

    Andy, I read McCoy’s book more than once, and it is always close by for quick reference for such discussion(s). Also relevant is “TRUTH, TORTURE AND THE AMERICAN WAY (The History and Consequences of U.S. Involvement in Torture)” by Jennifer K. Harbury (Forward by Amy Goodman), Beacon Press Boston, Copyright 2005. (Hi there, George!!! ♥) Peace, Chris ♥

  18. Andy Worthington says...

    Thanks, Chris.

  19. Andy Worthington says...

    George Kenneth Berger ‎wrote:

    Christine. Having that book too close by might be a reliable cause of nightmares.

  20. Andy Worthington says...

    That’s funny, George …

  21. Write to the Forgotten Prisoners in Guantánamo [Summer 2011 - July 24th Deadline] « aseerun says...

    […] and also that other well-known prisoners — such as Shaker Aamer, the last British resident, and Khalid Sheikh Mohammed, the alleged 9/11 mastermind — were allegedly “not known.” In some cases, I suspect that this […]

  22. Guantánamo: Military Commissions And The Illusion Of Justice - OpEd says...

    […] is of relevance not just in the case of Khalid Sheikh Mohammed and his co-accused, but, more pressingly, in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the attack […]

  23. Guantánamo: Las comisiones militares y la ilusión de justicia | Amauta says...

    […] tiene importancia no solo en el caso de Jalid Sheij Mohammed y sus compañeros de acusación, sino que es mucho más apremiante en el caso de Abd al-Rahim al-Nashiri, el supuesto […]

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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