November 13, 2009
Mitch Potter Washington Bureau National Security Reporter
WASHINGTON–Promising open and fair trials for all the world to see, U.S. Attorney General Eric Holder said Friday he is confident five prime suspects in the attacks of 9/11 will face the "ultimate punishment" of death after they are returned and tried near the scene of the crime in New York City.
In a milestone decision marking a crucial step in the winding down of the Guantanamo Bay detention facility, Holder also revealed that Canadian detainee Omar Khadr will be prosecuted before a U.S. military tribunal – but the attorney general indicated the U.S. government will remain open to the possibility returning detainee Omar Khadr to Canada, depending on the outcome of a Supreme Court hearing underway today in Ottawa.
The two dramas playing out in Ottawa and Washington leave the prosecutorial fate of Khadr as yet unresolved.
But the decision in Washington marked a turning point, effectively dividing high-profile detainees into two groups, one to face civilian prosecutors for alleged roles in the 2001 terrorists attacks that killed civilians on American soil and a second group – including Khadr – to face military justice on charges of attacks on military targets overseas.
Among those to face civilian justice in New York is Khalid Shakh Mohammed, the self-proclaimed 9/11 mastermind who was waterboarded 183 times during interrogation. President Barack Obama, speaking to reporters as the onset of a weeklong trip to Asia, said he was confident Mohammed will be subject to "the most exacting demands of justice.
"The American people insist on it, and my administration insists on it," Obama said.
Holder, a former prosecutor, acknowledged the myriad challenges of a New York trail. But he rebuffed concern the proceedings could attract more attacks, that impartial juries might prove elusive, or the outcome could see detainees ultimately set free. Holder said that upon reviewing evidence not yet public, he is confident a fair and secure trial will ensure convictions.
The U.S. decision sparked immediate anger from conservatives and some families of 9/11 victims. Debra Burlingame, whose brother piloted the plane hijacked and flown into the Pentagon, said in a statement that a civilian trial "will be a travesty."
"In open court, it will be Khalid Sheikh Mohammed who will hold forth," she said, "mocking his victims, exulting in the suffering of their families, ridiculing the judge, his lawyers and the American justice system, and worst of all, rallying his jihad brothers to kill more Americans."
In Ottawa, Government lawyers told the nine high court justices that Canada has done enough to protect Khadr rights and the courts could not meddle in issues of foreign affairs.
Friday’s long-awaited Supreme Court hearing follows seven years of legal challenges by Khadr’s lawyers who have argued successfully that Canada has the right to protect Khadr. Harper has steadfastly maintained that he would not follow in the steps of other Western leaders and request Khadr’s repatriation.
Khadr’s lawyers had hoped the Obama administration would hold off deciding where Khadr should be tried until the Canadian Supreme Court ruled – a decision unlikely to be reached this year.
Khadr’s American lawyer Barry Coburn, who was among the more than 200 spectators who watched the Ottawa hearing Friday, said he found the U.S. Department of Justice’s decision to prosecute Khadr before a military commission "devastating and shocking."
"We are deeply disappointed," said Coburn.
"We thought that the incoming Obama administration signaled a new day with respect to these cases – a new respect for civil liberties, an abhorrence of torture, a respect for the time-honoured legal procedures and protections that are mandated by the Constitution and enforced by the federal courts."
Prosecuting Khadr before a military commission rather than a criminal court is likely to fuel further controversy. The Obama administration has opted to try some Guantanamo detainees – including the alleged 9/11 conspirators – in the federal courts.
"The only conceivable basis for prosecuting cases in the discredited military commission system is that the administration lacks the confidence that it can obtain a conviction in the legitimate courts," said the ACLU’s Ben Wizner.Changes have been made to the military law that was first established for Guantanamo detainees by the Bush administration but critics say the process still lacks basic legal safeguards.
"Despite cosmetic improvements, the military commissions still permits the use of evidence obtained unconstitutionally and still permit the government to conceal details of its mistreatment of prisoners from the public," argues Wizner.
Khadr, now 23, was 15 when shot and captured in Afghanistan following a July 2002 firefight. The Pentagon charged him with five war crimes, including murder the death of U.S. soldier Christopher Speer who was fatally wounded during the firefight. (The cases were suspended once U.S. President Barack Obama took over the White House).
Khadr is the youngest of the remaining 215 detainees and the only Westerner.
Khadr’s Canadian lawyers won two previous cases in the last seven years, stopping Canadian agents from interrogating Khadr in Guantanamo and forcing the government to turn over evidence in his case.
The evidence included an interrogation video showing a 16-year-old Khadr crying and begging to be sent home. While the video spread quickly internationally, it failed to generate overwhelming sympathy in Canada.
Various polls over the years indicate that Canadians remain split on the case, largely due to the unpopularity of Khadr’s family. Khadr’s father was a reputed financier for Al Qaeda before Pakistani forces killed him in 2003. Other family members now living in Toronto have been accused of being "Canadians of convenience."
Along with the interrogation video, Khadr’s lawyers were also given a government memo that stated Khadr had been subjected to a sleep deprivation regime at Guantanamo, known as the "frequent flyer program."
That revelation sparked the most recent legal battle. The Federal Court of Appeal ruled in a 2-1 decision that Canadian officials, knowing the treatment Khadr had endured, violated his constitutional right. The only remedy is for Harper to now intervene, the court ruled noting, "Canada cannot avoid responsibility for its participation in the process at Guantanamo Bay prison."