Fordham Law


Holder Makes the Right Decision On Gitmo and 9/11 Detainees But Does It Kicking and Screaming

Annemarie McAvoy on Foxnews.com, April 05, 2011

Media Source

By Annemarie McAvoy

Finally, the Obama administration has seen the light and has agreed to send the cases of the five 9/11 co-conspirators back to the military tribunal in Gitmo. Of course, they should have left the cases there in the first place. The display Monday by Attorney General Eric Holder, in which he said sending the cases back to a military tribunal is a mistake but he has been forced to do so because of Congress, has simply made a bad situation even worse.

These detainees were already being handled in military commission proceedings in Gitmo in 2009 and the defendants were talking about pleading guilty. Then their cases were removed to the Southern District of New York aka "SDNY” where the co-conspirators were indicted in December of 2009. Their cases have sat in limbo ever since while Holder tried to figure out what to do. Now they are finally being sent back to the military commissions in Gitmo, but the cases will have to be start all over again.

The display by Holder at his press conference Monday announcing the decision was truly remarkable. He explained that he is sending the cases back to a military tribunal in Gitmo even though he thinks that is the wrong thing to do. According to Holder, it was only because of congressional interference that these defendants will not be tried in the city of New York City, where he said they belonged.

He railed against Congress, saying that this should have been an Executive Branch decision, and that they should not have interfered. It was truly amazing to see Holder stand before reporters and whine that he knew better than Congress. He spoke to the prosecutors, he said, he saw the evidence and Congress should have left the decision to him.

He ignored the fact that the system of government we enjoy in the United States is based on a system of checks and balances, where one branch makes sure another branch does not go too far, as they have done here. Holder also dismissed the concerns raised by so many over security issues relating to trying these defendants in the middle of Manhattan. He said during the press conference that he was from Queens, New York, and that NYC could handle it.

Well, I am also from Queens and I disagree with Holder. And I have spoken with many judges, law enforcement experts and legal practitioners who work in and around that courthouse who also disagree with him on that point.

The Obama administration had said all along that the reason they wanted to hold the trials in New York was to show the world what a wonderful, fair legal system the United.States has. On Monday, Holder showed the world how dysfunctional our system has become. He made it sound as though the Executive and Legislative branches of government are not working together at all. That one branch could simply force the other branch to do something against its will.

He also announced that we are sending these cases to a forum that is not the best place for them to be tried, because he has had to yield to Congress’ wishes. Our attorney general looked like a petulant child who could not admit his decision to remove the cases from a military commission in Gitmo had been wrong.

In fact, the only appropriate place for these cases to be heard, despite Holder’s protestations to the contrary, was a military tribunal in Gitmo.

Khalid Sheikh Mohammed had reportedly been water-boarded. That means that any evidence that grew out of those interrogations would be inadmissible in federal court. The government should have learned from the near disaster that happened with the trial of Ahmed Ghailani, a terrorist who had been involved with the embassy bombings in Africa in 1998 in which 224 people were killed.

In that case, in a trial that actually was tried in the SDNY, the allegation that Ghailani had been subjected to enhanced interrogation meant that the prosecution’s star witness could not testify, since his existence came to light as a result of those interrogations. The government was only able to convict Ghailani on one of the 285 counts against him. In fact, the government was lucky he was not acquitted.

This is a great example of why it was the right decision to send the case of the 9/11 co-conspirators back to a military tribunal. We cannot take a chance that due to similar technicality those who potentially bear responsibility for the horrific attacks on 9/11, which resulted in the killing of almost 3,000 people, could be acquitted.

It cannot be forgotten that everything that is said and done relating to alleged terrorists is being analyzed all over the world. There are those who are waging war against the United States. It is not an option for our country to look weak and ineffectual. Terrorists need to be handled as the enemy combatants that they are, and if the administration has made a mistake, it should be able to admit that it has done so, learn from it and move on.

Annemarie McAvoy is a former federal prosecutor. She currently is a consultant and teaches Counter-Terrorism, Anti-Money Laundering and Terrorist Financing at Fordham Law School in New York City.