April 4, 2011
The Obama administration has squandered a key opportunity to reject the unlawful counterterrorism policies of the past. It has sacrificed fundamental protections under the US constitution and international law in what may be the single most important case of President Obama’s tenure.
Andrea Prasow, senior counterterrorism counsel

(New York) - The Obama administration's decision to prosecute the five men accused of plotting the September 11, 2001 attacks on the United States before a military commission is a serious setback for justice, Human Rights Watch said today. Reversing his November 2009 announcement that the men would be tried in federal court in New York, Attorney General Eric Holder announced on April 4, 2011 that the suspects will face trials before a military commission at Guantanamo Bay.

"The Obama administration has squandered a key opportunity to reject the unlawful counterterrorism policies of the past," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "It has sacrificed fundamental protections under the US constitution and international law in what may be the single most important case of President Obama's tenure."

The military commissions at Guantanamo have been marred by procedural irregularities, the use of evidence obtained by coercion, inconsistent application of ever-changing rules of evidence, inadequate defense resources, poor translation, and lack of public access. Although the Military Commissions Act of 2009 made significant improvements over the Bush administration's system, the law still departs in fundamental ways from fair trial procedures used in US federal courts and under international law binding on the United States.

"Any trial in the military commission system will carry the stigma of Guantanamo and be subject to challenge and delay," Prasow said. "It will keep the world focused on how the defendants were treated rather than the crimes they are accused of committing. A verdict in the federal court system, by contrast, would be recognized throughout the world as legitimate."

According to federal rules relating to the location of a case, a murder trial must take place in the jurisdiction where the crime occurred. In the case of the 9/11 attacks, the trials could have been held in the Southern District of New York, the Eastern District of Virginia, or the Western District of Pennsylvania.

In November 2009, Holder announced that the five 9/11 defendants would be moved from Guantanamo to stand trial in federal district court in New York City, a site of the attacks. In December 2009, prosecutors in New York obtained a sealed grand jury indictment against the five co-accused. After New York City officials raised objections based on purported security and cost concerns, the Obama administration put the decision as to the trial location on hold.

In December 2010, Congress passed restrictions on the use of Defense Department funds to transfer Guantanamo detainees to the US, either for prosecution or detention. The restrictions made it more difficult for the Obama administration to hold the 9/11 trials in the US, but not impossible. The restrictions expire at the end of this year and the administration still could have used Department of Justice or Homeland Security funds for the same purpose, Human Rights Watch said.

In a prepared statement, Holder said that, although he still believes federal court is the right venue to try the 9/11 case and that he could have proved the defendant's guilt in that forum, congressional restrictions gave him no choice but to bring the case in the military commissions. "Members of Congress [...] have taken one of the nation's most tested counterterrorism tools of the table and tied our hands in a way that could have serious ramifications," Holder said.

"The Obama administration blamed congressional restrictions for the decision to try the 9/11 suspects in a military commission, but in fact it had two years to bring the case to trial in US federal courts," Prasow said. "The congressional restrictions on Guantanamo transfers are no excuse for failing to prosecute the case in US federal courts."

Because federal courts are governed by over 200 years of precedent, verdicts obtained in them are more likely to withstand evidentiary, procedural, and constitutional challenges. Military commission proceedings also progress much more slowly than federal court terrorism cases. During the nine years since the military commissions were first announced, military prosecutors have brought only six cases to completion, four of them by plea bargain. Two convictions from 2008 are still only at the first level of appeal. Federal courts, by contrast, have prosecuted hundreds of terrorism-related offenses during the same period, convicting 9/11 conspirator Zacarias Moussaoui and "shoe bomber" Richard Reid, among many others.

Many family members of 9/11 victims have spoken out in favor of civilian trials both because they support fair trials in the time-tested federal system and also because they want to be able to witness the proceedings.

"Trying the 9/11 case in New York made sense because it is where the crime happened and where most of the family members of the victims live," Prasow said. "Now with the trial taking on a military base, far away, many of those affected will be shut out of the process."