Self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will be sent to New York to face trial in a civilian federal court, an Obama administration official said Friday.
Five other suspects at Guantanamo will be sent to military commissions, the official said, but it was not immediately clear where.
The official said Attorney General Eric Holder planned to announce the decision Friday morning. The official was not authorized to discuss the decision before the announcement, so spoke on condition of anonymity.
Without confirming details of the decision, President Barack Obama said it was both a prosecutorial decision and national security matter. "I am absolutely convinced that Khalid Sheikh Mohammed will be subjected to the most exacting demands of justice," Obama said at a joint news conference in Tokyo with Japanese Prime Minister Yukio Hatoyama.
Bringing such notorious suspects to U.S. soil to face trial is a key step in Obama's plan to close the terror suspect detention center at Guantanamo Bay, Cuba. Obama initially planned to close the detention center by Jan. 22, but the administration is no longer expected to meet that deadline.
It is also a major legal and political test of Obama's overall approach to terrorism. If the case suffers legal setbacks, the administration will face second-guessing from those who never wanted it in a civilian courtroom. And if lawmakers get upset about terrorists being brought to their home regions, they may fight back against other parts of Obama's agenda.
"This is definitely a seismic shift in how we're approaching the war on al-Qaida," said Glenn Sulmasy, a law professor at the U.S. Coast Guard Academy who has written a book on national security justice. "It's certainly surprising that the five masterminds, if you will, of the attacks on the United States will be tried in traditional, open federal courts."
The New York case may force the court system to confront a host of difficult legal issues surrounding counterterrorism programs begun after the 2001 attacks, including the harsh interrogation techniques once used on some of the suspects while in CIA custody. The most severe method -- waterboarding, or simulated drowning -- was used on Mohammed 183 times in 2003, before the practice was banned.
Holder also was to announce that five other detainees, including a major suspect in the bombing of the USS Cole, Abd al-Rahim al-Nashiri, will face justice before a military commission, the official said.
The five suspects are headed to New York together because they are all accused of conspiring in the 2001 attacks. The five headed to military commissions face a variety of charges but many of them include attacks specifically against the U.S. military.
It was unclear where commission-bound detainees like al-Nashiri might be sent, but a brig in South Carolina has been high on the list of sites under consideration.
The actual transfer of the detainees from Guantanamo to New York isn't expected to happen for many more weeks because formal charges have not been filed against most of them.
The attorney general has decided the case of the five Sept. 11 suspects should be handled by prosecutors working in the Southern District of New York, which has held a number of major terrorism trials in recent decades at a courthouse in lower Manhattan, just blocks from where the World Trade Center towers tumbled on Sept. 11, 2001.
Holder had been considering other possible trial locations, including Virginia, Washington, D.C., and a different courthouse in New York City. Those districts could end up conducting trials of other Guantanamo detainees sent to federal court later on.
The attorney general's decision in these cases comes just before a Monday deadline for the government to decide how to proceed against 10 detainees facing military commissions.
In the military system, the five Sept. 11 suspects had faced the death penalty, but the official would not say if the Justice Department would also seek capital punishment against the men once they are in the federal system.
The administration has already sent one Guantanamo detainee, Ahmed Ghailani, to New York to face trial, but chose not to seek death because other conspirators involved in his case did not face capital punishment for similar offenses.
At the last major trial of al-Qaida suspects held at that courthouse in 2001, prosecutors did seek death for some of the defendants.
Mohammed already has an outstanding terror indictment against him in New York, for an unsuccessful plot called "Bojinka" to simultaneously take down multiple airliners over the Pacific Ocean in the 1990s.
Some members of Congress have fought any effort to bring Guantanamo Bay detainees to trial in the United States; they have argued it would be too dangerous for nearby civilians. The Obama administration has defended the planned trials and pointed out that many terrorists have been safely tried, convicted, and imprisoned in the United States, including the 1993 World Trade Center bomber, Ramzi Yousef.
Mohammed admitted to interrogators that he was the mastermind of the attacks -- he allegedly proposed the concept to Osama bin Laden as early as 1996, obtained funding for the attacks from bin Laden, oversaw the operation and trained the hijackers in Afghanistan and Pakistan.
Mohammed and the other defendants in the Sept. 11 case are all held in a section of Guantanamo known as Camp 7 that is considered so sensitive that it's location on the base is classified and no journalists have been allowed to see it.
When they arrive in New York, the detainees will almost certainly be held at a grim prison tower near the courthouse. The Metropolitan Correctional Center has been a temporary home for mobsters, terrorists, and Wall Street cheats, most recently Bernard Madoff.
The four other detainees headed to military commissions in the United States are: Omar Khadr, Ahmed Mohammed al Darbi, Ibrahim Ahmed Mahmoud al Qosi and Noor Uthman Muhammed. Their cases are not specifically connected but two of them are accused of plotting against or attacking U.S. military personnel.
The transfer decisions are likely to only intensify the legal debate over military commissions.
Some civil libertarians hailed the decision as a long overdue victory.
"Eight years ago we were told justice would be done for the perpetrators of the 9/11 attacks. Today we took a long overdue but critically important step toward that goal," said Princeton University professor Deborah Pearlstein.
But there were critics as well.
"I think the military commissions are built on a base that in my opinion is so legally deficient that any efforts to return them to the right track would be questionable in my mind," said Gary D. Solis, a former Marine Corps judge advocate and judge who ran the law of war program for six years at the U.S. Military Academy at West Point.
Eric M. Freedman, a Hofstra University professor of constitutional law who has been assisting the Guantanamo detainees, suggested the government may be sending some cases to the military commissions because "there is insufficient evidence to convict in a fair trial in civilian court," said Freedman.
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