Lake: Gitmo Likely to Stay Open

Eli Lake writes

The Pentagon announced Tuesday that military prosecutors have reinstated charges against Khalid Shaikh Mohammed and four others for their role in plotting the Sept. 11, 2001, attacks on the United States.

The new charges strongly suggest that for the foreseeable future the detention facility at Guantanamo Bay in Cuba will remain open, despite public promises by President Obama from his second day in office to close the prison that is closely linked to his predecessor’s war on terrorism.

The decision to formally charge Mohammed as well as Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed al Hawsawi through a military commission also is a setback for Attorney General Eric H. Holder Jr., who favors civilian trials.

Mr. Holder led a campaign within the administration to conduct civilian trials for Mohammed in New York City, and his prosecutors secured a grand jury indictment. But the plan for the trial of the alleged Sept. 11 mastermind faced strong political opposition from Republicans, including New York Mayor Michael Bloomberg, and many Democrats.

The indictment was dropped last month, paving the way for the military charges to be reinstated.

Last month, Mr. Holder said he believed the U.S. government could have won the case against Mohammed in civilian court, but he blamed Congress for passing legislation that led to his referring the case back to the military commissions.

“Unfortunately, members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States,” Mr. Holder said in an April statement. “While we will continue to seek to repeal those restrictions, we cannot allow a trial to be further delayed for the victims of the 9/11 attacks or their families. I have full faith and confidence in the reformed military commission system to appropriately handle this case as it proceeds.”

A Defense Department statement Tuesday said the five men will be charged with “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.”

If convicted, the charges could result in the death penalty.

Robert Chesney, a law professor at the University of Texas at Austin and an expert in national security law, said the announcement was not surprising.

“Setting aside the possibility that an inspection of the sworn charges reveals something unexpected, this isn’t exactly a surprising development,” Mr. Chesney said.

“We’ve known since early April that the administration was giving up on the civilian prosecution option in the face of determined congressional resistance, and that these persons would instead be prosecuted by military commission after all.”