Former Attorney General John Ashcroft defended the use of military commissions for terrorism suspects in a speech before the conservative Heritage Foundation on Wednesday.
The Obama administration is in the process of reviewing whether terrorism suspects housed at Guantanamo Bay should face trials in civilian or military courts as they work to close the military prison.
Ashcroft, who served as the nation’s top law enforcement official from 2001 to 2005, said proceedings before the military tribunals would be fair to the defendants and dismissed the concerns of liberal groups, including the American Civil Liberties Union. He said the use of commissions would not result in “cooked justice.”
“The rights of individuals are respected by our military,” Ashcroft said. “They are the people who give their lives in order to defend those rights. And it is less than fair to suggest that because you have a military commission, somehow you will be disrespecting justice.”
The Obama administration has slated some detainees for trials before military commissions. But Attorney General Eric Holder announced late last year that self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators were destined for a civilian court in New York.
Holder has since backed off his announced plans for KSM and his alleged accomplices after backlash from Republican and Democratic leaders. He has said that military commissions are once again on the table for the terrorism suspects.
Ashcroft also said the Obama administration should continue to hold terrorism suspects at Guantanamo Bay and the prison is good facility to house alleged terrorists captured by soldiers on the battlefield.
“The idea that somehow there is something evil about Guantanamo, I think is a bankrupt idea,” the former Attorney General said.
United States Marshals Service Director John Clark has spent more than 20 years in the service. He previously served as the Chief Deputy U.S. Marshal and United States Marshal for the Eastern District of Virginia. A George W. Bush appointee, Clark was the first career Deputy U.S. Marshal appointed as director and was sworn in on March 17, 2006. When President Barack Obama took office in 2009, Clark stayed on as director, where he’ll remain unless the Obama decides to nominate someone to fill the position.
Last month, Clark was joined by Attorney General Eric Holder at the U.S. Marshals Service Director’s Awards Ceremony, where they gave out awards to U.S. Marshals employees recognizing them for their work on issues like the Mexican border, upgrading the technology used to track fugitives, and preparing mobile command centers.
Main Justice sat down with Clark to discuss the U.S. Marshals Service’s plans for dealing with the transfer of Guantanamo Bay prisoners, drafting logistics for the trial of Khalid Sheikh Mohammed in New York City and dealt with an influx of activity on the Southwest border. An edited version of the interview appears below.
Main Justice: What type of challenges is the U.S. Marshals Service facing?
John Clark: There are lots of things that stretch and strain us these days, of course, you can just think about everything from Guantanamo Bay to the recent few days with the Times Square bomber. Folks like that end up in our care and custody. There’s the Southwest Border, the prison population. In fact, nationally we’ve had about a 4 percent increase, about 58,000 plus federal detainees in our care and custody. Enforcing the Adam Walsh Act, protecting the federal judiciary, witness security. You put it all in the basket and it’s a tremendous amount of work to handle.
So this year, thanks to a really decent president’s budget for this fiscal year, we have been able to overcome some of the challenges - at least on our funding and human resources base - or as they might be called boots on the ground. We’ll have more deputy marshals, we’re finishing up here our largest recruitment effort ever. This year we’ll have about 14 new basic deputy marshal classes passing through our academy [there are typically 45 or 46 deputy marshals in each graduating class].
The Marshals Service, because of our unique role in the judicial system, really has a touch on so many different things that go on. I like to describe it as we’re the neck of the federal judicial funnel. Everything that comes though in terms of prisoners, fugitive warrants, asset forfeiture, witness protection, protecting judges, all that kind of stuff some through that funnel, and the Marshals Service has some role to play with that.
Putting the deputy marshals in the field where the work is, and using our federal funding base to meet and help us offset a lot of these challenges - things that are going on around the world that impact us. We are overcoming some of those challenges this year thanks to great support from the Department of Justice and the president on the budget, so this year and through next year will be better for us.
MJ: On the issue of Guantanamo, I guess you’re sort of in a holding pattern right now until they decide what’s next. How detailed are the plans for transferring prisoners to the United States from Guantanamo?
Clark: I will say the plans are very detailed. We try to think of everything. I wouldn’t discuss those plans obviously openly, but we are organizationally ready and able to meet the wishes or the direction of the president and the Attorney General to provide for safe and secure location wherever the trials might be decided to be held.
You’re correct that right now the Attorney General and the president have decided to explore other locations and actions they might want to take about where they might want to try them eventually. But our role is to provide for the very best security possible wherever those trials may be held.
MJ: So there are a number of different options you’ve explored for where the trials would be held?
Clark: Sure. At the request of the Attorney General. If he directs certain places where he feels the trials might be held as a venue, we would go out and do a security survey, look at the venue itself and try to make preliminary assessments on what vulnerabilities might exist at that particular location, as well as describing what strengths their might be or what might lend itself to being a better venue for the trials.
That’s all done on what I would call our professional opinion. It’s not an exact science when you’re trying to figure out security circumstances. But you can rely on a lot of past experience and things that you can do nowadays to make a very good assessment of a particular location to see if if would be good for a trial.
MJ: How quickly could you set up a location if a certain spot was designated?
Clark: We could respond very quickly. In terms of assessing a spot that had not yet been looked at, that would probably take some time. But that would only take about 72 hour or a week to get the basic survey done. Obviously, the more time we have, the better it is.
It would be doubtful that the Attorney General or the president would ask us to do something like that on a moments notice - although in the Marshals Service we are known for being able to do something overnight and get it done. We have plenty of history and a track-record of being asked to do something on very short notice and getting it done. So that does happen.
We have the mechanism in place to very quickly take care of assessments and do those kind of things. But if it’s a decision, for example, of where to bring Guantanamo Bay detainees, the more time we have to assess the place the better.
MJ: With the KSM trial, what are the additional challenges that the U.S. Marshals see that make it different from a normal trial?
Clark: As individuals are watched on the world stage, everybody has an interest on how that plays out. But when you think about the individuals themselves and their connection to terrorism, their open statements that they’ve already made in terms of their hatred for Americans, the security apparatus has the be the very best it can be, as visible as it can be, as robust as it can be.
The challenge for us comes when you’re having a public trial in a building that is open to the public, that is often in places where there’s all the other considerations you need to make, in terms of the community, in terms of the building itself and the structure itself. There’s lots of factors that go into trying to assess all that. It’s just safe to say when you have high-visibility-type detainees such as those held at Guantanamo Bay that we need to really be on top of our game when handling security not only surrounding those individuals but all the individuals that they might come in contact with - from judges, the public, U.S. attorneys and others who are there.
MJ: I noticed recently in Philadelphia you assigned new deputy U.S. Marshals to that area. How do you decide which areas need additional Marshals?
Clark: We have a resource allocation model. One of the things we’ve really focused on in the past few years is a methods and means to be able to place deputy marshals and resources where they’re most needed. Of course there was congressional intent over the past few years to place some of our new positions on the Southwest border because of the increased workload down there. But offices like Philadelphia and a number of other places. In fact now a new graduating class will see recruits going to all points across the country. This last graduating class, I remember talking to deputy marshals going to small places like Vermont to large district offices like Houston, so we’re filling the gaps.
MJ: You’ve been heading the U.S. Marshals for awhile now, what trends have you noticed over that course of time?
Clark: Well I’m approaching my fifth year as director, and I’ve noticed in that time what I call an increased tempo - a pace - of national security issues, violent crime issues, on the Southwest border, of course taking primary responsibility for the Guantanamo detainee issues. When you think about that as a bunch of moving parts, there’s a lot of things that are going on there. One thing that’s really been noticeable to me is the pace is always on the increase. Just comparing where things are now to certainly five years ago. When you think to a pre-9/11 scenario, there was not so much of the process going on that we have today. It’s a very fast paced sort of process.
MJ: What are the accomplishments you’re most proud of?
Clark: We’ve been able to increase our efforts on violent crime. We’ve been able to increase the size and scope of our regional fugitive task force and our district fugitive task forces. I’ve also been here to sort of shepherd in the Adam Walsh Act law. When I first came in as director that was not yet signed into law, and there was a lot of debate about who would be responsible and if we were the right agency to tackle that.
I’m also pleased with the overall accomplishment of being able to get a more robust budget and resources for our agency which was desperately needed to see increases in staffing and financial ability to be able to handle the tasks that we’ve been given.
I guess the final thing, just in terms of things that have happened in recent years, is the increase in the judicial protection. Being able to get the home intrusion alarms in judges’ homes [and] opening up a threat management center here at our headquarters in order to be able to handle judicial threats. So those things have been able to make us a stronger, better agency.
MJ: To what do you attribute that rise in threats against judges and federal law enforcement officials?
Clark: There’s a few things I think that are going on there. For one there’s increased awareness with all the judges and the U.S. Attorneys and all those we’re responsible for protecting. And when you increase the awareness, that is to make people aware of the threat environment and their responsibility to report it, there’s usually, and in this case there was, an uptick in the number of incidents reported to us.
Every time there’s a conference with groups of attorneys meeting, we have someone from the Marshals going to those conferences to speak to them about their security and the importance of it. We’ve also strengthened our relationship with the judiciary. Whenever I travel, I meet with chief judges and district judges and U.S. attorneys to make sure that they have my number, they know how to get a hold of me, and that we are available to them on short notice. We’ve done a lot of education and awareness, so they see the need to report.
The cause of it, I might say though, in today’s world there are more individuals who are more prone to threatening judges. I think a lot of it has to do with the availability of information with the use of technology and the Internet. Individuals can find out more about particular cases and judges decisions. They can use Internet sources to find out more about the judge. So if someone is prone to want to threaten someone, there are a number of ways they can find material about a judge. We have to think about that as well. The number of individuals who are just prone to violence against judges or U.S. Attorneys has also increased.
MJ: But technology has also been a help to the Marshals as well. You have the mobile command units, increased ability to track fugitives. Could you talk a little bit about how things have changed in that respect, how technology has helped you track prisoners and fugitives?
Clark: Things like the mobile command units were all purchased with the purpose of helping us increase our response time, help us be fast on our feet. If there’s an incident anywhere in America, be it a natural disaster, like a Hurricane Katrina, or some type of a significant event - a major case that’s going on or a judicial protection detail, or a number of things where we might want to have a good mobile base of operations, command and control of communications - those vehicles help us do that. It’s designed to help us increase our response and be fluid and fast in getting there.
MJ: On the Southwest border, what are some particular challenges that the Marshals are facing?
Clark: We have a very high volume of detainees around there, may of whom are apprehended along the border for either immigration violations or some other type of crime connected to the Southwest border. In Houston, Texas, alone, there’s about 6,500 detainees just in our South Texas district. So prisoner population generated from that is a great challenge. Cross border issues, violence, as you probably know from the news on a regular basis, there’s always something it seems like back and forth across the border.
The Marshals Service through our fugitive task forces are very involved in the various police and sheriff’s departments along the border and our federal partners in trying to apprehend fugitives or wanted people who are going back and forth from the U.S. to Mexico. We have an office in Mexico City and we have a number of what we call Mexican Investigative Liaisons - MIL positions - the deputy marshals who spend most of their day working with their counterparts in Mexico to help accomplish everything from international extraditions to finding people, wanted subjects.
So it’s a combination of just the huge Department of Homeland Security effort down there - the violence, the cartels, the drug trafficking - that drives a lot of the prisoner population and makes for a very busy area.
MJ: Internationally, how do you maintain relationships with other countries in terms of extraditing prisoners to and from the U.S.?
Clark: The Marshals Service is responsible for finding international and foreign fugitives, fugitives who have fled from another country to the United States and those who have fled from the United States to another country, so we have very good relationships with our foreign counterparts. In fact in a couple weeks, we’re co-hosting with the Toronto Police Service an international fugitive conference in Toronto which will have about 22 countries attending. We work very regularly with INTERPOL, of course the State Department, the Department of Justice of course with their international affairs.
Annually, now we conduct, it’s approaching a 1,000 now, international extraditions a year from points all over the world. In addition to that with the fugitive apprehension program, we assist foreign governments with finding individuals who are wanted here. If it has a terrorism nexis or national security nexis, the FBI will handle it. But the vast majority of those international cases for individuals, the U.S. Marshals Service will handle it. So we work very closely with the embassies here in Washington.
MJ: What are some of the countries you see the most interaction with?
Clark: Well on the Northern border with Canada, we have a lot of activity in that part of the country, and actually we have a very similar process there with our district offices along the northern border who interact very closely with our Canadian counterparts. In the European corridor, a lot of the countries which produce the most activity are Great Britain, Germany. We do have some activity in the Far East as well. A lot of the sex offender cases seem to migrate to or have some connectivity to the Far East.
MJ: In working with local and state law enforcement, have you noticed any recent needs because of budget constraints in different states?
Clark: We pride ourselves in working very closely with our state and local counterparts, and they too are struggling with budget restrictions or cutbacks in personnel. Many of the state and local departments that we’ve dealt with have actually had to reduce the number of police officers on the street.
We are able to help in locating wanted people that a lot of the departments are looking for, but also through our task forces we’re able to help supplement their police operations with some of our funding and personnel. So we’re able to help them with things like getting radios, or vehicles, or maybe paying out some overtime, so it helps them continue their basic crime fighting strategy. So it has been a noticeable thing.
MJ: Any particular areas where there has been a lot of help from the Marshals?
Clark: The most recent example is in Florida, where we had a number of locations were departments were asking for some federal help. We were ale to work with some of the congressional leaders, the Department of Justice and others to get funding to establish a task force there. Over the last year and a half or so we’ve been building up task force operations there in Florida. A number of places that wouldn’t have been able to do much at all on the fugitive apprehension side now have a very good, robust fugitive squad that’s part of the larger state of Florida.
MJ: The Marshals recently sent out a unit to protect the trial of the man convicted of killing abortion doctor George Tiller. How many of those type of special protection cases do the Marshals handle?
Clark: There are occasionally situations like that where we’ll have to provide extra protection for individuals who are part of a case. In some ways, that was an unusual circumstance because of the nature of what happened there with that particular situation. But from time to time we do have to go out and provide protection for individuals. In this case - the abortion provider Dr. Tiller’s extended family - you don’t know if there’s a larger plot of intent by others to want to kill others who are part of that group, so you just don’t know.
We have quite regularly had protection details on judges, and it usually requires a lot of investigative work and effort to determine the nature of the threat and we have to put in place protective measures to provide security for that individual and his or her family.
MJ: One of the things that is currently being considered is having cameras in the courtroom. Do you think that could pose new challenges for the Marshals Service?
Clark: It could. We organizationally, because of security issues, would want to make sure that the cameras don’t show the faces of witnesses or judges or people that might otherwise be harmed in a case. In other words, there are some legal issues that are certainly beyond any involvement that we have. We essentially follow the law whatever that is. But we have some concerns from a security standpoint.
MJ: The public serves a large role in your effort to capture fugitives by bringing them to your attention, how are you getting your message out there?
Clark: One of the things that I’m pleased to say is that we have a close relationship with America’s Most Wanted. They’ve done about 1,000 shows now, and the Marshals Service has been instrumental in 60 percent of the individuals captured on that show - either directly arresting them or helping another agency arrest them. The National Center for Missing and Exploited Children, we have a great connectivity to with the enforcement of the Adam Walsh Act. Basically any organization that has anything to do with our law enforcement functions, we have a strong partnership, a strong connectivity to them.
MJ: The Adam Walsh Act was mentioned on the 1,000th episode of America’s Most Wanted, I guess the president mentioned it as a priority for the next fiscal year?
Clark: John Walsh was interviewing the president, and the president had good research and he knew about the Marshals’ enforcement of the law and knew that we were not yet fully funded to do that, so he did pledge on national TV his support. We’re hoping as that unfolds down the line in that new fiscal year, we’ll see an appropriate number of resources being dedicated to fix that.
That’s another sort of huge undertaking for us, because there are by very conservative estimates 150,000 unregistered, or we call them non-compliant sex offenders out there, meaning there are individuals who their whereabouts are unknown in the local where they should be registered, so the local authorities don’t know where they are. If you turn on the TV or open the newspaper any given day, you’ll see evidence oftentimes of non-compliant sex offenders picking up young children or other teenagers and the results are often tragic, so we of course take that very seriously.
MJ: Could you talk a little about your work providing witness security and how that plays into successful prosecutions?
Clark: That’s an often hidden part of our work, but we are providing witness protection, and that’s been ongoing for a couple dozen years now. We have about 8,000 individuals for which we provide protective measures for, and with family members, the total is about 18,000.
So it’s a large protective operation that provides a great deal of support for the Department of Justice and others because it provides support for and helps to solidify the prosecutions. When you have witnesses who feel capable of testifying without any fear of retaliation or threats or any death threats they’re more willing to testify and more willing to participate in the case.
No one has ever been killed who have followed the rules. We have people who have left the program voluntarily on their own or haven’t been able to follow our instructions, but nobody under our direct responsibility has been killed so we’re very pleased with that record and we hope it stands.
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After announcing that Khalid Sheikh Mohammed and four alleged 9/11 co-conspirators would be tried in federal court, Attorney General Eric Holder assembled a team of prosecutors from Alexandria, Va., and Manhattan — an elite squad for which “failure is not an option,” as Holder put it during a congressional hearing in November.
But as the possibility of a civilian trial grows more remote, the team’s participation in the trial of the century has become an open question. If President Barack Obama decides to place the defendants before a military commission, the Defense Department will have final say on the composition of the trial team. Moreover, several members of the original military trial team remain at the two agencies.
Holder and his national security adviser, Amy Jeffress, reportedly decided who would be part of the civilian trial team. Current and former Justice Department officials told Main Justice that team includes John Davis, Ray Patricco and James Trump of the U.S. Attorney’s Office for the Eastern District of Virginia; and Michael Farbiarz, David Miller and David Raskin of the U.S. Attorney’s Office for the Southern District of New York. The Justice Department’s National Security Division is supporting their efforts.
The offices declined to comment on the composition of the 9/11 prosecution team, as did a spokesman for the National Security Division.
“This is still a Justice Department case,” said Joe DellaVedova, military commissions spokesman. ”Whatever decision the administration comes to, we will fully support and stand behind it.”
Davis and Raskin were named in January as likely candidates to lead the team. Davis, head of EDVA’s Criminal Division, has worked on several high-profile terrorism cases, including the prosecution of John Walker Lindh, who was convicted in 2002 of aiding the Taliban. He was an Associate Deputy Attorney General from 2004 to 2006.
Raskin stepped down as chief of SDNY’s terrorism unit last year — presumably, to work on the 9/11 cases full time — and is now the office’s Senior Trial Counsel. He was one of the prosecutors in the death penalty trial of Zacarias Moussaoui, the only defendant convicted in connection with the 9/11 attacks. More recently, Raskin has been overseeing the prosecution of Ahmed Khalfan Ghailani, the first Guantanamo Bay detainee transferred into the criminal justice system.
Of the others on the team, Patricco is Deputy Chief of the EDVA’s Criminal Division, and Trump is the office’s Senior Litigation Counsel. Farbiarz is co-chief of SDNY’s new Terrorism and International Narcotics Unit, and Miller is a line prosecutor in the General Crimes Unit and a former lawyer in the Justice Department’s Counterterrorism Section.
As the White House reviews Holder’s decision to try the alleged 9/11 conspirators in federal court, it has signaled its intent to invigorate the military tribunals. Last week, the Pentagon tapped Bruce MacDonald, a retired three-star admiral with national security and international law bona fides, to run the war court.
And now that the health care bill has been signed into law, Obama’s advisers are turning their attention to shuttering the Guantanamo detention center. Obama appears open to a deal that would see Mohammed prosecuted in a military tribunal in exchange for Republican support for the prison’s closure, but negotiations are ongoing — and could be for some time.
In the meantime, lawyers in both agencies are waiting to find out whether and to what extent they’ll be a part of history.
The Defense Department and the Justice Department work closely on the military commissions, and several military prosecutors double as federal prosecutors. The chief war crimes prosecutor, Navy Capt. John Murphy, is an Assistant U.S. Attorney from New Orleans. He would decide the makeup of the prosecution team if Obama chooses a military tribunal over a civilian trial.
Before it disbanded in November when Holder decided to prosecute the accused 9/11 plotters in federal court, the military prosecution team reflected the inter-agency partnership. Justice Department lawyers accounted for four of the trial team’s seven members and included George Toscas, now a Deputy Assistant Attorney General in the National Security Division, and Ed Ryan, now the acting U.S. Attorney for the Western District of North Carolina. The top military prosecutor on the team, retired Army Col. Robert Swann, remains in the military commissions office.
“Could that team be reassembled? It’s possible,” said a Defense Department official. “But right now, we’re waiting for information like everybody else.”
Eric Bruce, a former federal prosecutor who worked on military prosecutions of high-value detainees in the Bush administration, said each side brought strengths to the 9/11 team. Military prosecutors had a firm grasp of the structure of the commissions and the rules, while Justice Department prosecutors brought a keen sense of how the case should be assembled and presented to the panel of jurors, said Bruce, who later served as Attorney General Michael Mukasey’s national security adviser.
The Justice Department provided “a wealth of historical knowledge” because the FBI, Joint Terrorism Task Force and federal prosecutors from the Southern District of New York had investigated Mohammed for several years, added Bruce, now a partner at Kobre & Kim LLP.
“If you’re a DOJ prosecutor, and you’ve never stepped foot in a military commission, of course it’s natural to rely on military prosecutors who’ve done 45 courts martial,” he said. “But they probably haven’t spent the last nine years tracking KSM’s movements around the world.”
Military prosecutors, several of whom have experience prosecuting complex drug and violent-crime cases, bristle at the notion that the 9/11 cases are beyond their talents. But few would disagree that Raskin and Davis, the leaders of the Justice Department team, are at the top of the list of a select group of experienced counterterrorism prosecutors. One Justice Department official said there’s no doubt they’d assist in a military prosecution — if they’re willing.
“It’s a pretty big request to ask people to give up their lives to move to Cuba for a trial in a system that they are not intimately familiar with,” said Christopher Morvillo, a former prosecutor in the Southern District of New York.
Added Morvillo, now counsel at Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer P.C.: “It would be above and beyond the call of duty — but it’s also the case of a lifetime.”
Said Bruce: ”It would be tough, but I think they have made a lot of sacrifices so far, and they’re dedicated prosecutors. I would think that if they could do it, they would do it.”
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Secretary of Defense Robert M. Gates has appointed a new chief judicial officer for the Office of Military Commissions, a strong signal that the Obama administration may have decided to try the Sept. 11 conspirators in the military court instead of civilian court, according to a Newsweek article.
Citing “three Defense Department sources familiar with the decision,” Declassified, Newsweek’s national security blog, reported Wednesday that the Pentagon is expected to announce that retired Admiral Bruce MacDonald will be the new “convening authority” for the Office of Military Commissions. The announcement could come as early as today.
According to the article, the appointment would pave the way for the Pentagon to begin convening trials for Khalid Sheikh Mohammed, sometimes called “KSM,” and other 9/11 conspirators at the U.S. detention facility at Guantanamo Bay, Cuba.
“All the indications we’ve been given are to get ready for a lot of activity in Guantanamo,” a military prosecutor, who asked not to be identified talking about upcoming cases, told Newsweek. “It’s full steam ahead.”
MacDonald, who formerly served as the chief Judge Advocate of the Navy, would replace Susan Crawford, a Bush political appointee who retired two months ago. He would be charged with referring charges, the military equivalent of an indictment, against Guantanamo detainees after receiving recommendations from military prosecutors. After the White House ordered a halt to all military commissions last year, the referrals were put on hold.
But now, it appears that “hold” is being lifted as military prosecutors are actively working on as many as 50 cases of Gitmo detainees who can be referred for trial before the commissions, the article said.
President Obama’s apparent embrace of using military commissions for the 9/11 conspirators would overrule Attorney General Eric Holder’s announcement that they would be tried before civilian courts. Holder’s decision to try KSM in New York drew fire from Republicans and New York City Mayor Michael Bloomberg, while liberals have blasted the administration for hinting that it might use military tribunals.
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Looks like a Rahm-Graham deal may pan out.
Republican Sen. Lindsey Graham of South Carolina has finalized the details of his proposal to change the nation’s terrorist detention system and White House officials have approached congressional Democrats in the hopes of garnering support for the plan on the Hill, the Washington Post reported Tuesday.
Graham’s proposal comes after weeks of discussion between the South Carolina senator and White House Chief of Staff Rahm Emanuel. In January, Emanuel and Graham began talks on a deal: Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks, would be tried in a military tribunal, in exchange for Graham’s support for a new U.S. detention center to replace Guantanamo Bay. (Graham has warned that his support for closing Gitmo would be affected by a civilian trial for KSM, which he adamantly opposes.) According to an unnamed administration official cited by The Post, those discussions have broadened and Graham now hopes to reach a “grand bargain” that would resolve many outstanding questions concerning terrorist detention.
The White House opposes some of the ideas in Graham’s proposal, such as a separate national security court to try alleged terrorist detainees, according to The Post. But other provisions — including one that would create a standard process for dealing with habeas petitions, where alleged terrorists challenge their status as “unlawful enemy combatants” in U.S. courts — are likely to find support, The Post said.
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 last fall that KSM and his co-conspirators would be tried in civilian courts. That decision has been blasted by Democrats and Republicans alike.
Administration officials told the newspaper that they had begun preliminary talks with Democrats on the Senate Judiciary Committee about Graham’s proposal.
Holder was scheduled to appear before the panel for an oversight hearing today, but the hearing was postponed late Monday to allow senators to attend the signing ceremony of the health care legislation. GOP senators on the committee had planned to intensely question Holder about his views on terrorist detention. That hearing has now been rescheduled for April.
A Justice Department official told The Post that when Holder appears before the committee next month, he will testify that the decision to hold KSM’s trial in Manhattan was a “close call.”
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The House Judiciary Committee’s top Republican, Lamar Smith of Texas, on Friday sent a letter to Attorney General Eric Holder requesting answers from the Obama administration regarding the anticipated prosecutions of Khalid Sheikh Mohammed and four others who allegedly conspired on the Sept. 11, 2001, terrorist attacks.
Smith released the following statement:
“Despite guarantees from Administration officials that KSM and his co-conspirators will be brought to justice, there is still a significant amount of uncertainty about how civilian trials for terrorists would work. Unfortunately, failure is an option in the federal courts. Part of being innocent until proven guilty means there is no way to guarantee a successful trial.
The Obama administration is making promises it can’t keep. If terrorists are brought to trial in the U.S., the courts will grant them additional constitutional rights, making it harder for prosecutors to obtain a conviction. Further, defense attorneys may argue successfully that statements made by Administration officials prejudiced the jury.
Terrorists should be treated as enemies of America — not common criminals. The American people deserve to have the facts before Gitmo terrorists are brought to the U.S. for trial.”
Here is Smith’s letter to Holder:
The federal judiciary is requesting $22 million in fiscal 2011 to cover expected costs associated with “high-threat” trials of suspected terrorists.
The request, the first of its kind, acknowledges “certain security and logistical challenges” unique to terrorism trials but steers clear of the raging debate over whether suspected terrorists should be prosecuted in federal court or by military tribunal.
Still, opponents of civilian trials could use the request to bolster arguments that prosecuting suspected terrorists in federal court is too pricey and endangers surrounding communities.
The $22 million is part of the federal judiciary’s $7.3 billion budget request, which was presented to a House Appropriations subcommittee on Thursday.
Judge Julia Gibbons, who chairs the budget committee of the Judicial Conference, the federal judiciary’s policymaking body, said the trial of Zacarias Moussaoui in Alexandria, Va., underscored the need for additional resources.
During the 2006 death penalty trial of Moussaoui, a convicted 9/11 conspirator, the city bogged down with armed guards, rooftop snipers, bomb-sniffing dogs, blocked streets and identification checks.
“High-threat trials in the federal courts present certain security and logistical challenges that must be addressed,” Gibbons said.
Gibbons, of the U.S. Court of Appeals for the 6th Circuit, also pointed to the cases of “shoe bomber” Richard Reid in Boston and Umar Farouk Abdulmutallab in Detroit.
Abdulmutallab, who is accused of attempting to blow up an airliner on Christmas Day, has been the focal point of the debate over whether the criminal justice system is equipped to handle suspected terrorists. Republicans have criticized the Obama administration, saying valuable intelligence was likely lost when FBI agents read him his Miranda rights. The White House has said Abdulmutallab began cooperating with authorities after initially clamming up.
Gibbons made no mention of Khalid Sheikh Mohammed, the self-professed 9/11 mastermind, whose planned trial in Manhattan was abandoned in the face of bipartisan opposition. (The Obama administration has proposed spending $73 million for security, detention, litigation and transfer of the Mohammed and four alleged 9/11 co-conspirators, who are being held at the military-run prison at Guantanamo Bay.) The Obama administration is in the process of deciding whether the suspects should be tried in military tribunal or federal court.
The $22 million, Gibbons said, would be for security, juror expenses and court-appointed defense counsel costs in “high-threat” terrorism trials. While the Justice Department is responsible for the U.S. Marshals Service, which protects court officers and buildings, the federal judiciary employs additional security guards, a courts spokeswoman said.
Gibbons said her committee would work closely with Congress to refine the request “once we have a better understanding of the number and location of high-threat trials that will take place in federal court.”
See Gibbons’ full remarks below:
I would like to turn briefly to an issue that has been widely discussed in recent months: the issue of whether suspected terrorists should be prosecuted in federal court or by military tribunal. As a neutral party in our system of justice, the Judiciary, of course, has remained silent in this debate. The decision on the appropriate venue to prosecute suspected terrorists will be determined by the Administration and Congress, as is appropriate.
My only comment on this topic is that high-threat trials in the federal courts present certain security and logistical challenges that must be addressed, such as those experienced with the Moussaoui case at the federal courthouse in Alexandria, Virginia, and the Reid (shoe bomber) case at the federal courthouse in Boston, Massachusetts. A case currently in federal court that has been widely publicized is the case of Umar Farouk Abdulmutallab, who has been charged with attempting to detonate an explosive device on a flight from Amsterdam to Detroit on December 25, 2009. He was indicted in federal district court in Detroit and is being held awaiting trial. As with any high-threat trial in federal court, the Judiciary works closely with local and federal officials as appropriate to provide a safe and secure venue for the proceedings.
The Judiciary’s fiscal year 2011 budget request includes $22 million for security, juror expenses, and court appointed defense counsel costs associated with high-threat trials. We will work closely with the Committee to refine this estimate once we have a better understanding of the number and location of high-threat trials that will take place in federal court.
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Two national security legal experts have proposed a novel solution to the ongoing debate over where to try alleged Sept. 11 mastermind Khalid Sheikh Mohammed and his co-conspirators: don’t try him at all.
In a column for The Washington Post, dated Friday but posted on the newspaper’s Web site Thursday, Benjamin Wittes and Jack Goldsmith argued that the United States should forgo a trial for KSM and instead focus on the issue of terrorist detention. Wittes is a fellow at the Brookings Institution and Goldsmith, now a professor at Harvard Law School, served as Assistant Attorney General for the Office of Legal Counsel during the George W. Bush administration. In the column, Wittes and Goldsmith suggest that the actual venue for the trial is unimportant now that both the Obama administration and Republicans agree that military detention is acceptable.
The politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.
The question of trial forum is important in certain cases. Before the Obama administration embraced the propriety of military detention, it was important for Mohammed too. If one intends to hold people only pursuant to criminal charges, as some in the Obama administration once suggested, the nature of those charges and the forum for them matter a lot.
But these issues matter much less since Obama made clear — to the anger of the left and to assenting nods from just about everyone else — that he reserves the right to detain people outside of the criminal justice system.
Instead, Wittes and Goldsmith propose that Republicans and the Obama administration concentrate on the larger issue of indefinite terrorist detention.
“Eight and a half years after the Sept. 11 attacks, it is time to be realistic about terrorist detention,” the pair wrote. “Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for the foreseeable future, continue to do the heavy lifting in incapacitating terrorists.”
Read the full column here.
Attorney General Eric Holder lashed out Tuesday on Capitol Hill at his critics who allege that terrorism suspects would be given extra rights if they are tried in a civilian court instead of a military commission.
Holder told members of the House Appropriations Committee’s Commerce, Justice and science subcommittee that claims that only a military court would aggressively prosecute terrorism suspects, such as self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed, “tends to get my blood boiling.” He said terrorism suspects in civilian courts, like murderers, aren’t being “coddled” and handled in “an inappropriate or special way.”
“They have the same rights that a Charles Manson would have,” Holder said.
Rep. John Culberson (R-Texas) said the Attorney General’s analogy was “incredible,” since the United States is at war with terrorist groups. He said most Americans see terrorism suspects like KSM as war criminals, not mass murderers like Manson.
“This is where the disconnect between the administration and your mindset is so completely opposite that of where the vast majority of the American people are,” Culberson said.
Holder rejected a hypothetical situation proposed by Culberson in which bin Laden had the rights of American citizens in a civilian court.
“You’re talking about a hypothetical that would never occur. The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in a U.S. courtroom. That’s the reality,” said Holder.
Last November, Holder announced that KSM and four of his alleged co-conspirators would be tried in a New York federal court instead of before a military commission. But the White House has faced pressure from both sides of the aisle to reverse Holder’s decision, and President Barack Obama is now personally involved in selecting the location of the KSM trial.
Obama is close to recommending that KSM and four alleged co-conspirators be tried before a military tribunal instead of a civilian court. Holder said the final decision is only weeks, not months, away.
Holder said he is willing to use military commissions for terrorism suspects, but doesn’t want to rule out civilian courts.
“We remain committed to using all of the tools that we have to try to win this war,” Holder said.
Alan Mollohan (D-W.Va.), the subcommittee chairman, said military commissions and civilian courts can both be used appropriately to handle terrorism prosecutions. He noted that about 300 defendants in terrorism cases have been successfully prosecuted in federal courts.
“I think it would be a mistake to categorically deny you access to the civilian system, especially in light of its established track record of success in terrorism prosecutions,” Mollohan said. He added: “The decision about whether to try a case in a civilian court is best left for the Department of Justice to determine, void of politics, just as was done in the previous administration.”
Holder appeared before the subcommittee to detail the Justice Department’s fiscal 2011 budget request. It includes $73 million to be used for the prosecution of Guantanamo Bay detainees.
Ryan J. Reilly contributed to this report.
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Attorney General Eric Holder has taken a lot of heat for his decision to try the accused Sept. 11 plotters in a civilian court. But if the White House changes course and returns the suspects to military commissions, Holder may be in an even worse position, the Wall Street Journal reported Wednesday.
According to DOJ officials, Holder’s decision to try Khalid Sheikh Mohammed and his four alleged co-conspirators in civil courts was predicated in part on President Barack Obama’s speech at the National Archives last year, the Journal said. “First, whenever feasible, we will try those who have violated American criminal laws in federal courts—courts provided for by the United States Constitution,” Obama said in May.
Justice Department officials admitted to the Journal that they failed to sufficiently reassure local residents after Holder’s announcement, but expressed frustration that the White House blocked Holder and others from publicly speaking out in defense of the decision.
According to the paper, Holder told friends he thought he had Obama’s support for the civilian trials. But White House Chief of Staff Rahm Emanuel opposed the idea, the Journal said.
According to the Journal, White House officials said they were now leaning toward a military trial for KSM and the alleged co-plotters as part of an effort to cut a deal with lawmakers on closing the detention facility at Guantanamo Bay.
Sen. Lindsey Graham (R-S.C.) is a key player in the deal and has said his support for closing Guantanamo is conditional on military trials for Mohammed and the others. However, there are still doubts about winning support from several Democrats, administration officials and congressional aides said.
The American Civil Liberties Union blasted the potential reversal in a full-page ad in the New York Times on Sunday. Anthony Romero, the ACLU’s executive director, told the Journal that a reversal would undermine the Justice Department’s reputation as non-partisan.
“Any reversal would clearly indicate that the decisions of the Justice Department are much more politicized than we were led to believe,” Romero said. “This Justice Department needs to show more incontrovertibly that it stands on its own two feet.”