9/11 Trials: A World Stage for Jihad?
The Obama administration made the decision to try the “Shura Council”, the five terrorists who planned and masterminded the attack on 9/11, headed by Khalid Sheikh Mohammed. FrumForum interviewed some who lost loved ones on 9/11, and former FBI and CIA officials regarding the issue of trying these terrorists in a federal court.
The family members interviewed felt that the attack against America was an act of war. They argued that Department of Justice attorneys told them that the attack constituted both a crime and a war act. They agree with Joe Holland, who lost a son on 9/11, when he explained that the act was conceived in a foreign land by foreign nationals who trained on foreign soil and were captured in a foreign country. Given this presumption, the most reasonable venue would be a military tribunal at Guantanamo Bay since terrorism is considered a military act against the state. Gordon Haberman emphatically stated that “it was an act of war. Osama declared war on America in 1996.” Bob and Shirley Hemenway, who lost a son on 9/11, told FrumForum that military personnel were killed in the Pentagon attack, and that is no different than those killed on the USS Cole. Yet, the Cole perpetrator is being tried in a military court while the 9/11 perpetrator is being tried in a federal court.
What needs to be considered is that Khalid Sheikh Mohammed (KSM) and the others were already being tried at Guantanamo Bay in a military tribunal. The family members cannot understand why the Obama administration suspended these trials considering they were very near completion. Former Commander Kirk Lippold of the USS Cole stated that over the past seven years, the military commission process has undergone extensive legal and congressional reviews. There is no need to start over considering “the rights given the terrorists under military tribunals are the fairest.” In addition, during these proceedings, the five terrorists stated over and over again how they were very proud of their acts. Holland recounted that "while I was sitting at the trials in Guantanamo as an observer, KSM admitted at least four times that he organized 9/11 and was happy that Americans were killed."
Most felt that a federal court trial has too many unknowns. The family members and CIA officials agree with former FBI agent Craig Dotlo who astutely explained that a “number of procedures followed during the subject’s custody did not comport with typical rules of evidence or other constitutional rights normally afforded Americans.” Debra Burlingame, who lost a brother on 9/11, summarized the issues: the terrorists’ rights to a speedy trial, the problems over classified evidence, all the evidentiary problems, and all the security problems.
Former agent Dotlo feels that the defense attorneys will constantly raise challenges to have evidence excluded and “will attempt to put the U.S. government on trial.” A former CIA official, Kent Clizbe, sarcastically stated that “of course there will be delays… that are what lawyers are all about… delay, delay, delay.” A former high-ranking CIA official felt that in this venue “defense attorneys will be given a free range to turn this into a trial of the Bush Administration’s approach on the war on terror as opposed to a trial of the ADMITTED perpetrators of 9/11, including the guy (KSM) who proudly admits to sawing Daniel Pearl’s head off.”
Aside from the defense attorneys being able to change the focus of the trial, the question remains if the terrorist defendants will also use it to propagandize their ideology. Debra Burlingame felt that given this open court venue, KSM will be given the opportunity to encourage “his fellow jihadists that they should continue to attack Americans. He is given a forum where he can rally more troops to kill Americans.” When asked about this issue, Dotlo summarized the law enforcement opinion by stating that “it is anticipated that the subjects will be taunting and mocking the 9/11 families on a worldwide stage. The subjects will engage in this activity as they have previously to manifest their contempt for America, but more importantly encourage other Muslims to be engaged.”
Regarding the classified information, some of which was obtained by harsh interrogation techniques, different points of view were provided to FrumForum. The former CIA officials agreed with one who stated that “the defense side will play discovery games demanding access to tons of sensitive documents and interviews with legitimate undercover officers.” Dotlo also pointed out that the government would not want to disclose its sources and methods, including the information provided by those sources from “intelligence agencies of other allied countries. This prospect could create a chilling effect on our relationship with other countries.” A CIA official noted that classified information could “not be presented in open court. It may be presented in the judge’s chambers if all parties have clearances.” Given these issues, a military trial makes more sense since all the jurors chosen can have national security clearance.
The dissenting opinion was given by some former FBI agents. Neil Hermann, the former FBI N.Y. counter-terrorism head, noted that the trial of Ramsey Yousef, who was involved in the first World Trade Center bombing, had some evidence de-classified and sanitized. He further stated that Yousef’s conviction showed “that the system did work.” Richard Marquise, the FBI agent who headed the Pan Flight 103 investigation, concurs and explained that he has the upmost confidence that the career DOJ attorneys would not have opted for this option if the case appeared weak. He stated that “I think they looked at the evidence and felt they can get a prosecution regardless of what evidence will be declared inadmissible.”
The bottom line is that the terrorists must be brought to justice and that the trial should be focused on their actions. Although some FBI agents do not see a problem with a federal court trial, their attitude is that either venue would be appropriate. Marquise feels that “the Constitution does not distinguish between an American and a foreigner. In either venue, the terrorists must be afforded constitutional protections.”
All interviewed have the same feelings, that they do not want this trial turned into a circus. As Neil Hermann stated, “the issue is that they should be prosecuted to the full extent of the law. They should be brought to justice and held accountable in either venue.” The 9/11 families want a trial that does not drag on by constant defense attorney challenges, that does not allow the terrorists a forum for their message, and where their lost loved ones finally get justice.