Kenneth Wainstein

The first-ever Assistant Attorney General for National Security urged the Obama administration to keep the door open on using both civilian and military courts in the prosecution of alleged terrorists, according to a New York Times article published Monday.

Former Assistant Attorney General Kenneth L. Wainstein joined with other national security officials who served under President George W. Bush in recommending that President Obama resist Republican lawmakers’ exhortations to move all terrorism cases to a military tribunal system.

“Denying yourself access to one system in favor of the other could be counterproductive,” Wainstein told The Times. “I see the benefit of having both systems available. That’s why I applauded the Obama administration when, despite expectations to the contrary, they decided to retain military commissions. It’s good to have flexibility.”

The debate over the forum for terrorism trials intensified after several news reports Friday that aides to President Obama are close to recommending that self-proclaimed Sept. 11 mastermind Khalid Sheik Mohammed and four of his alleged co-conspirators be tried in before a military commission instead of a civilian court.

John B. Bellinger III, a top legal adviser to the National Security Council and the State Department under President Bush, and Juan C. Zarate, a former Bush administration deputy national security adviser, also urged the Obama administration not to “handcuff” itself by eliminating the option of civilian trials.

On Tuesday, Reuters reported that United Nations human rights investigators called on the administration to prosecute the accused Sept. 11 masterminds in civilian courts, arguing that U.S. military tribunals would not be fair.

Ryan J. Reilly contributed to this report.

Sen. Lindsay Graham (R-S.C.) said Sunday on CBS’s Face the Nation he would be able to convince Republican senators to vote in support of closing the detention facility at Guantanamo Bay if President Barack Obama agrees to try alleged terrorist detainees in military tribunals instead of civilian courts.

Sen. Lindsey Graham, R-S.C. (Gov)

The president has struggled to find congressional support for his campaign promise to close the detention facility in Cuba, especially after Attorney General Eric Holder’s announcement that the self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks — Khalid Sheik Mohammed, and other alleged terrorists — would be tried in civilian courts. That decision has been blasted by Democrats and Republicans alike.

The Washington Post reported Friday that President Obama’s advisers are “nearing a recommendation” that Mohammed return to a military tribunal for prosecution in order improve the administration’s political maneuverability on the Guantanamo Bay issue.

The White House had already decided against trying Mohammad in New York City near the site of the demolished World Trade Center towers. That reversal came after New York City business leaders and Mayor Michael Bloomberg complained in January about the cost and disruption of a trial in Manhattan.

During Sunday’s show, Graham said that he supported closing Guantanamo Bay but did not believe alleged terrorists were entitled to the same rights as U.S. citizens. Graham also said that he needed the support of military leaders and former Bush administration officials in order to convince Republicans to open a new facility on American soil to house the remaining Guantanamo detainees.

Below is excerpt of the transcript from Sunday’s show. Click here to see it in its entirety.

SENATOR LINDSEY GRAHAM: I’m getting a lot of grief because I do believe it’s best to close Gitmo safely.
So what I’ve told the President is that you’re now my commander-in-chief. Detainee policy in this
war is hard, it’s complicated, but we must get it right. We would be better off as a nation if we
could close Gitmo safely and start a new prison that he could use that the world would see as a
better way to doing business. And Khalid Sheik Mohammed, if he’s not an enemy combatant,
who would be? The President is getting unholy grief from the left. But, Bob, I think we’re at war.
I don’t believe Khalid Sheik Muhammad robbed a liquor store. He’s the mastermind in 9/11.
We’ve have used military commissions before. I’m a military lawyer. I have a lot of faith in the
military legal system. I’m willing to give robust due process. There’s a place for civilian court but
I will stand by my President to make rational detainee policy. We’ve got fifty people at Gitmo that
are too dangerous to be let go that will never go through a normal criminal trial. Let’s create a
new legal system, so they’ll have their day in court.

BOB SCHIEFFER: So where is this situation right now-

SENATOR LINDSEY GRAHAM (overlapping): Well, we’re- we’re-

BOB SCHIEFFER: -because, basically, as I understand it, what you have said to the White
House is if- if you will agree to try these people in military tribunals-

SENATOR LINDSEY GRAHAM (overlapping): Some of them.

BOB SCHIEFFER: -I- some of them. I- I will help you in getting the Republican votes that are
needed to close Guantanamo.

SENATOR LINDSEY GRAHAM: Right. President Bush said we needed to close Guantanamo.

BOB SCHIEFFER: Mm-Hm.

SENATOR LINDSEY GRAHAM: Senator McCain said it’d be better to close it. I believe that. We
need a legal system that gives due process to the detainee but also understands they didn’t rob
the liquor store. We’re at war and some of this information is very sensitive and classified. So
where we’re at now is, can this administration reverse course on Khalid Sheik Muhammad,
which I think would be an act of leadership well received by the public. He’s getting beat up
badly from the left but the ACLU theory of how to manage this war, I think, is way off base.
And those who want to waterboard on the right and believe that we should keep Gitmo open
forever and use any technique to get information, I think they’re equally off base. We’ve got to
win this war within our value system. But I understand that it’s a war.

BOB SCHIEFFER: Did you think, Senator Graham, that if the administration would agree to
what you want to do, put them before military tribunals-

SENATOR LINDSEY GRAHAM (overlapping): At least five.

BOB SCHIEFFER: -do you think- at least five of them.

SENATOR LINDSEY GRAHAM: Mm-Hm.

BOB SCHIEFFER: Do you think you can get the Republican votes to close Guantanamo and-
and open another facility in this country because that’s going to require considerable amount of-

SENATOR LINDSEY GRAHAM (overlapping): I can’t — I can’t do it by myself. But I think if we
could get Khalid Sheik Mohammed and the co-conspirators of 9/11 back in the military
commission, it’d go down well with the public. But I’m going to need General Petraeus, Admiral
Mullen, people known in public office. I’m going to need people from the Bush administration to
try to close Gitmo, to put aside partisanship, rally around this President, stand by his side and
say, let’s close Gitmo safely. With that kind of help, that will reassure Americans we’re making a
good, logical decision, we can do the things we need to do to getting in back-

A previous version of this post incorrectly stated that Graham said he would be able to convince at least five Republican senators to vote to close Guantanamo. Graham was referring to the number of Guantanamo detainees he wanted the administration to put before military tribunals.

Thomas Penfield Jackson (Jackson & Campbell, P.C.)

A former U.S. District Court judge wrote an op-ed piece in Friday’s Washington Post calling for the trial of Khalid Sheik Mohammed to be moved to Washington, D.C.

Thomas Penfield Jackson, who for 22 years served as a judge in the U.S. District Court for the District of Columbia before joining Jackson & Campbell, P.C. in 2004, argues that KSM’s trial should be held in Washington, D.C., because “KSM’s crimes were committed against the entire nation, and it is fitting that the nation’s capital should host his trial.” In addition, the federal government will bear the brunt of the cost of the “expensive” trial,  not the city in which the trial is held, Jackson writes.

One cause for concern — whether the trial is held in New York City, as Attorney General Eric Holder announced last November, or in Washington, D.C. -  is that “the trial would once again make New York an enticing target for a terrorist attack, but New York is always an appealing target for attack.” He adds, “For that matter, so is Washington.”

Jackson continues that Holder “should reject the suggestion that [KSM] be tried by a military commission at Guantánamo Bay or anywhere else. His crimes were civil, not military.” He notes that KSM “owed no allegiance to any flag, nor did he wear the uniform of any country” and he “answered to no code of military honor or of the law of war.” Jackson writes, “A public trial in a civilian federal criminal court would demonstrate to the world, once again, that the United States, applying its well-respected standards for fairness, can convict terrorists as the common criminals they are.”

The retired judge writes that he is “sure my former colleagues on the court would not appreciate the extra work the KSM trial would require, but they have all become intimately familiar in recent years with the problems of the administration of justice in the age of terrorism.” In addition, “most of them have tried high-profile, protracted and complex criminal cases, some of them capital cases,” Jackson writes.

While the Justice Department “has been rumored to be concerned with an alleged reluctance of D.C. juries to impose the death penalty … no prosecution should ever be undertaken for the primary purpose of putting the defendant to death. The goal is a fair trial,” according to Jackson.

However, “There is virtually no possibility of an acquittal or even a hung jury.” He adds, “Obtain the conviction, and the penalty will take care of itself. (In KSM’s case, it could never be less than life in a maximum-security prison without parole.)”

President Barack Obama will help choose the location of the KSM trial (White House).

President Obama will help select the location of the trial of Khalid Sheik Mohammed and insert himself into the process that has faced major political setbacks, The Washington Post reports.

Administration officials acknowledged that Attorney General Eric Holder and Obama advisers were not able to build support for the trail in New York City. Meanwhile, Holder acknowledged in an interview with The Post that the trial may be switched to a military commission.

“At the end of the day, wherever this case is tried, in whatever forum, what we have to do is ensure is that it’s done as transparently as possible and with adherence to all the rules,” Holder said. “If we do that, I’m not sure the location or even the forum is as important as what the world sees is proceeding.”

That position is a major shift from where he stood previously, but reflects the political reality of holding the trial in a city against the will of Mayor Michael Bloomberg and several Republican and Democratic senators who have signaled support for a bill which would bar the Justice Department from funding the trail in civilian court.

In November when he announced the decision, he cited the symbolism of bringing the men to justice near the site of the World Trade Center towers, which were demolished in the Sept. 11, 2001 terrorist attacks.

“After eight years of delay, those allegedly responsible for the attacks of September the 11^th will finally face justice,” Holder said in a statement. “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.”

The decision to try Mohammed was Holder’s alone, officials said, and was not influenced by politics.

“Their building represents what they do — justice. It’s rightly not staffed with people who have to worry about congressional relations or federal funding,” one White House official told The Washington Post.

Reflecting on his first year, Holder told The Post: “What I’ve tried to do is reestablish the department in the way that it has always been seen at its best, as an agency that is independent, given the unique responsibilities that it has,” he said. “But to be truly effective in the national security sphere, you’ve got to involve partners outside this building. To make decisions the AG has to make, you have to involve the commander in chief and these other people. I’m part of the national security team in a way that I’m not involved in the environmental resources team, the civil rights team.”

In an interview with The New York Times, Holder again hit back at critics of trying terrorism suspects in civilian court, saying fear and partisanship drove some of the objections to the administration’s decisions.

“I think a substantial number of people who have criticized the decisions I have made have done so on a political basis for partisan motives and have used fear in a way to support their arguments,” he said. “And it’s a difficult thing to overcome fear with facts, to overcome campaign slogans with explanations of complex policy decisions. It’s not impossible, but it’s difficult, and it’s an effort that I need to be more engaged in.”

The White House and the Justice Department have been more visible in countering the Republican attacks in recent weeks after seeming to be caught off guard by the political storm over the NYC trials.

The New York Times article pointed out that civilian trials have a much better track record than military commissions:

John Walker Lindh and David Hicks were both young Muslim converts who traveled to Afghanistan to join the Taliban and were captured there in 2001 by American troops. But then their cases diverged — in ways that might surprise anyone following the fierce political debate over how the Obama administration should treat terrorism suspects.

Bush administration officials decided to charge Mr. Lindh, an American, in the civilian criminal justice system. He was sentenced to 20 years in federal prison and will not get out until at least 2019.

Mr. Hicks, an Australian, was treated as an enemy combatant — the approach now pressed by President Obama’s Republican critics. He went before a military commission at Guantánamo Bay in Cuba and got a seven-year sentence with all but nine months suspended. He is already free.

The Justice Department is now “scrambling” to assess sites outside Manhattan for a civilian trial of accused 9/11 plotter Khalid Sheikh Mohammed and four other alleged al-Qaeda terrorists, the New York Times reported late Thursday night, in an update to a previous version of the article that said a “chorus” of opposition had arisen.

The updated New York Times story suggested the administration’s response to the trial location issue was evolving quickly on Thursday, and that the Justice Department may have been caught off guard by the strength of the opposition to a Manhattan trial.

Earlier Thursday evening, the New York Daily News reported that the White House had “ordered” the Justice Department to evaluate other locations for a trial, while Fox News reported that the White House “has begun discussing alternate locations with the Justice Department.”

New York Mayor Michael Bloomberg’s opposition to trying five alleged plotters of the Sept. 11, 2001 terrorist attacks in federal court in Manhattan has ballooned into a major political problem for the Obama administration. It lent momentum to moving the trial out of the city.

According to the New York Times, “the apparent collapse of what had seemed since November to be a settled decision to hold the trial in lower Manhattan” became clear when New York’s senior senator, Democrat Charles Schumer, said Thursday he was encouraging the Obama administration “to find suitable alternatives.” New York’s junior senator, Kirsten Gillibrand, also a Democrat, added she was “open to alternative locations,” the newspaper said. And New York’s Democratic governor, David Patterson, reiterated his opposition to the trial location.

Meanwhile, the New York Daily News reported Thursday night that the White House had “ordered” the Justice Department to evaluate other locations for a trial, though it cited no source for the information. Fox News reported that the White House “has begun discussing alternate locations with the Justice Department.”

Department spokesman Dean Boyd told The New York Times that no decision has been reached on moving the trial.

The growing uproar over the trials is a political setback for Attorney General Eric Holder, who announced his decision in November to try the accused 9/11 plotters in New York, including the self-confessed 9/11 “mastermind,” Mohammed. The alleged terrorists had been held at the military facility in Guantanamo Bay, Cuba, which the administration has been trying to shutter.

Holder has also come under criticism by conservatives for the decision to charge alleged Christmas Day airplane bomber Umar Farouk Abdulmutallab criminally rather than hold him as a military detainee for questioning by intelligence experts. Virginia Gov. Robert McDonnell (R) decried that decision Wednesday evening in giving the Republican response to President Barack Obama’s State of the Union speech.

Opposition to a civilian trial for KSM, as Mohammed is known in government circles, cropped up immediately after Holder announced his decision in November. Within hours, former Attorney General Michael Mukasey, who served under George W. Bush, slammed the decision in a speech before a meeting of the Federalist Society in Washington.

Former Vice President Dick Cheney, ex-New York Mayor Rudy Giuliani, former Attorney General John Ashcroft and other conservatives piled on, arguing that military tribunals are a more proper setting to weigh charges against the alleged 9/11 plotters.

But what brought the controversy to a boil were remarks on Wednesday by Bloomberg, who had previously supported the trial in federal court, blocks in lower Manhattan from the site where the World Trade Center towers were brought down in 2001 after al-Qaeda operative crashed hijacked commercial airliners into the buildings.

Bloomberg, a Republican, objected to the security costs, estimated to be $200 million a year for a Manhattan trial. “It would be great if the federal government could find a site that didn’t cost a billion dollars, which using downtown will,” he told reporters Wednesday, according to The New York Times. On Thursday Bloomberg stepped back a little from his earlier comments. “[W]ould I prefer that they did it elsewhere? Yes, but if we are called on, we will do what we’re supposed to do,” he said, according to the Times.

According to the Daily News, New York City Police Commissioner Raymond Kelly catalyzed opposition among Manhattan business leaders, who then leaned on Bloomberg to reverse his position. Kelley gave a speech arguing the trial would be too disruptive and costly at a Jan. 13 policy charity event, the tabloid reported.

“What turned this around was when Ray made a presentation to the Police Foundation,” the Daily New quoted an unnamed source. “Everyone went from thinking, ‘Justice will be served’ to thinking ‘We are screwed.’”

In Congress, New York Republican Rep. Peter King (R)  introduced a bill Wednesday to cut off financing for civilian trials of accused 9/11 terrorists, and South Carolina Sen. Lindsey Graham (R) said he would introduce companion legislation in the Senate next week.

The Obama administration is considering holding a trial in Washington, D.C., for alleged terrorist Riduan Isamuddin, the Guantánamo Bay detainee who is suspected of planning the deadly nightclub bombing in Bali, Indonesia, in 2002, The Associated Press reported Friday.

According to the AP, “U.S. officials briefed on the plan” said other terrorism trials could be held in Washington and New York City under a proposal being discussed by the administration. The officials said the Obama administration could make a decision in a matter of weeks, though the idea of trying Hambali in D.C. has been floated for months.

In August The Washington Post reported that DOJ officials were considering trying Isamuddin — better known by his nom de guerre, Hambali - in Washington, apparently as a kind of consolation prize for D.C. not being considered to host the Khalid Sheikh Mohammed trial.

At the time, the  Southern District of New York and the Eastern District of Virginia were vying to prosecute the self-proclaimed mastermind of the Sept. 11, 2001 attacks, after Attorney General Eric Holder decided Mohammed should be moved out of Guantanamo Bay and tried in federal court. Manhattan won out over the Alexandria, Va.-based Eastern District, helping to secure its reputation as a premier venue for prestigious national security cases.

On Sunday, The Washington Examiner reported that “security experts” said Washington wasn’t equipped to handle Hambali. The Examiner said facilities in Alexandria, Va.,  where al-Qaeda supporter Zacarias Moussaoui’s was convicted, would be a better fit.

Department of Justice spokesman Dean Boyd said Attorney General Eric Holder hasn’t even decided if the Hambali case will be tried in military or civilian court. ”The attorney general has made no decision on forum for this case, let alone on where such a case would be tried if it were sent to federal courts,” said Boyd.

Despite DOJ’s unwillingness to confirm or deny the reports, The Hill reported Friday that Republicans were slamming the potential move. ”Moving terrorist detainees to within a mile of the White House and blocks from the U.S. Capitol for show trials is a mistake,” Michigan Rep. Pete Hoekstra, the ranking Republican member of the House Intelligence Committee, said in a statement.

Alexandria Mayor Bill Euille similarly criticized the prospect of having the trial in his city. ”The city’s opposed to having any terrorist tried in our city,” he said. “It’s not about what we’ll be known as but protecting the quality of life of our residents.”

Hambali was allegedly Osama bin Laden’s point man in Indonesia, facilitating communications between al-Qaeda and Jemaah Islamiyah, the terror group said to be responsible for the Bali nightclub attack that left 202 people dead.

Hambali denied any connection to al-Qaeda at a preliminary military tribunal in 2007. Since his capture in 2003, Hambali was held at a CIA “black site” and the detention facility in Guantánamo Bay.

President Barack Obama’s self-imposed deadline to close Guantánamo Bay is less than a week away, though the president has acknowledged it will not be met.

Closing the detention center has proved to be a difficult task as the administration has been unable to find countries that will take detainees cleared for release. Obama has also had to confront the complicated legal and political issues connected with moving detainees into the U.S. court system.

In August, the Washington Post reported that the U.S. Attorney’s offices in Alexandria and Manhattan were “embroiled in intense competition” over the opportunity to prosecute 9/11 mastermind Khalid Sheik Mohammed and other terrorism suspects connected to the attacks. Holder ultimately chose New York to host the trial, a move that immediately came under fire.

“KSM’s first response when he was captured was ‘I will see New York with my lawyer,’ ” former Attorney General Michael Mukasey said on Fox News Channel. “He got instead a military commission. Now, of course, he is getting the fate of his dreams, which is a courtroom in New York City.”

The Justice Department has also faced major hurdles in its efforts to provide security for the trial. Earlier this month, New York City Mayor Michael Bloomberg estimated the cost of security operations for the trials at more than $200 million.

According to the AP, authorities have already started to review the security measures need to try Hambali and others in federal court in Washington.

Trying detainees like Mohammed and Hambali in civilian courts also presents a host of prosecutorial issues. Some have questioned if evidence obtained through “harsh interrogating techniques,” like water-boarding, would be admissible in court. Critics also fear that such trials would disclose sensitive information that could help terrorists.

While Holder has decided that the U.S courts can handle Mohammed’s trial, and possibly Hambali’s, this may not be the case for all of the nearly 200 detainees still at Guantánamo. Holder is currently going through detainees’ files to determine who can be tried in a U.S. court and who should remain in the military commission system, where the rules of evidence are laxer and defendants have fewer rights.

This report has been updated to reflect that The Washington Post broke the news of Hambali’s possible District of Columbia trial in August.

Edwin Meese III

Former Attorney General Ed Meese on Wednesday joined in the criticism of Attorney General Eric Holder’s controversial decision to try alleged Sept. 11, 2001, terrorism mastermind Khalid Sheikh Mohammed in federal court in New York. Meese served as Attorney General under President Ronald Reagan from 1985 to 1988.

In a blog posting on Web site of the Heritage Foundation, where Meese is the Ronald Reagan Distinguished Fellow in Public Policy and chairman of the Center for Legal and Judicial Studies, he also criticized the decision to “abandon” the Guantanamo Bay detention camp.

Here’s Meese’s full blog posting:

“It is clear that foreign terrorists and terrorist groups have committed acts of war against the United States, and that our national security requires that we respond accordingly. This means that President Bush’s prudent actions and the military response which he led should continue as our answer to these attacks.

Congress overwhelmingly reaffirmed their commitment to military commissions in 2006, which have historically been the way that we respond to acts of war. To abandon our two centuries of tradition and to substitute some new civilian procedure as a response to such attacks endangers the security of our country and our national interest.

It was a tragic mistake to decide to abandon the prison facility at Guantanamo Bay, which was designed physically and legally to handle these types of cases. It is a further tragic mistake to now bring the detained war combatants into the United States and to employ civilian criminal procedures which were never intended for this type of situation.

The U.S. Constitution protects American citizens and visitors from the moment they are suspected of criminal wrongdoing through a potential trial. These same protections are not, have never, and should not be granted to enemy combatants in war, since it is clear that regardless of the outcome of the trial, these detainees will likely remain in the custody of the United States.”

Former Attorney General Michael B. Mukasey on Tuesday during a radio interview with The Washington Times joked that Rep. James Moran (D-Va.) “ought to get professional help, perhaps from Maj. Nidal [Hasan],” the accused Fort Hood shooter, The Huffington Post reports.

Last week, Moran criticized opponents of Attorney General Eric Holder’s decision to try Khalid Sheikh Mohammed and his Sept. 11, 2001, co-defendants in the Southern District of New York, Talking Points Memo reported. “They see this as an opportunity to demagogue,” Moran told TPM. “They will seize on any opportunity to do that, and that means they’ll even take a stand that’s un-American.” He added, “It’s un-American to hold anyone indefinitely without trial. It’s against our principles as a nation.”

During his interview, Mukasay was asked to respond to Moran’s comments. “I think he’s lost touch with reality. He ought to get professional help, perhaps from Maj. Nidal.” Last week, Mukasey slammedthe decision to try Mohammed in New York City.

Associate Deputy Attorney General Neil MacBride was nominated for Virginia Eastern District U.S. Attorney Thursday night, according to a White House news release.

The Washington Post reported earlier this week that MacBride was going through FBI background checks for the job.

Neil MacBride (Business Software Alliance)

Democratic Virginia Sens. Mark Warner and Jim Webb recommended that President Obama nominate either MacBride, Eastern District Assistant U.S. Attorney Erik R. Barnett, former U.S. Attorney for the Western District Robert P. Crouch or Dwight Holton, an Assistant U.S. Attorney in Oregon and the brother-in-law of Virginia Gov. Tim Kaine (D) brother-in-law. Read our previous post on the senators’ U.S. Attorney recommendations here.

Law enforcement officials told The Post that it is vital to install a Senate-confirmed U.S. Attorney in the Eastern District as soon as possible since the office is vying for the opportunity to prosecute self-proclaimed Sept. 11 mastermind Khalid Sheik Mohammed and his alleged accomplices. The office is currently led by interim U.S. Attorney Dana Boente.

MacBride has served as an associate deputy attorney general since January. He was previously chief counsel to Vice President Biden and a vice president at the Business Software Alliance, where he lobbied the Senate, according to The Post.

Some governmental watchdogs have expressed concern over Obama nominating MacBride because of his past in lobbying, The Post said. They have pointed out that such an appointment would run against Obama’s attempts to reform D.C. lobbying customs, according to the newspaper.

But DOJ officials and former co-workers told The Post that MacBride’s past as a lobbyist and a prosecutor would make him a perfect candidate for U.S. Attorney.

This post was updated to reflect MacBride’s formal nomination by the White House on Thursday.