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Thread: Key 9/11 Suspect To Be Tried In New York

  1. #41
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    The Death Penalty Problem
    9/11 Trial Puts German-US Relations Under Strain

    http://www.spiegel.de/international/...662814,00.html

    By John Goetz and Marcel Rosenbach
    11/22/2009

    The prosecutors in the forthcoming 9/11 trials in New York will be seeking the death penalty if the five defendants are found guilty. That could pose a problem for Germany, which is supplying vital evidence for the prosecution.

    The US government could have hardly picked a more symbolic venue for the trial of its worst enemies. With its colonnade of Corinthian pillars, the 27-story US Courthouse in Lower Manhattan is a daunting fortress of justice. On Sept. 11, 2001, judges and court clerks gathered on the upper floors of the building were able to observe the impact of the second jet that crashed into the World Trade Center, just a few blocks away.

    The men accused of orchestrating the 9/11 attacks will soon be put on trial here, not far from the scene of the crime. Next year federal prosecutors in New York are expected to read indictments against Khalid Sheikh Mohammed, Ramzi Binalshibh and three other alleged conspirators. They will be transferred from the detention facility at the US naval base in Guantanamo Bay, Cuba to a courtroom less than a mile from Ground Zero, where they will receive a fair trial instead of facing a military tribunal. US Attorney General Eric Holder's decision to try the suspects in a civilian court has made international headlines and prompted sighs of relief in many parts of the world.

    No Capital Punishment in Germany
    But it looks like the upcoming trial will cause headaches for Germany. Holder and US President Barack Obama have announced that they intend to seek the death penalty if the five defendants are found guilty. German law prohibits capital punishment, yet evidence provided by German investigators will play a key role in the trial.

    This presents the German government with a dilemma. Berlin can either oppose the use of German evidence in a bid to protect the defendants from execution -- and risk alienating a NATO ally in the process -- or it can approve the use of the incriminating documents, which would contravene Germany's position on the death penalty.

    According to the current mutual legal assistance agreement between the two countries, should the information furnished by German investigators be used to impose the death penalty, Germany can insist that this evidence be considered inadmissible in court. This would not be the first time that the Germans have demanded such assurances for criminal proceedings.

    The trial in New York is threatening to put a strain on German-American relations. Washington already feels that Germany has let it down by refusing to take in former detainees after the Obama administration decided to close Guantanamo. What's more, when it comes to bringing the terrorists behind 9/11 to justice, there is currently very little understanding in the US for any legal concerns that Berlin might have.

    Tug-of-War over Moussaoui Documents
    It's not the first time the two countries have locked horns over this issue. Shortly after the attacks, a heated debate flared up, followed by months of tug-of-war over German bank transfer documents, which played a key role in the trial of would-be French suicide pilot Zacarias Moussaoui.

    At first the German government demanded that the US court could not seek the death penalty for Moussaoui. But Berlin later relinquished and allowed the German documents to be entered as evidence in the trial in exchange for a binding assurance that this information could not be used to justify the death penalty -- a concept built on shaky legal ground.

    The problems facing Germany in the upcoming New York trial are considerably more serious. Moussaoui had never lived in Germany and the dispute over evidence in his trial concerned only very few documents. But it is another story altogether with Ramzi Binalshibh, who was allegedly the main logistics man behind the attacks. He lived in Germany for six years and shared an apartment in Hamburg with two of the 9/11 suicide pilots, including Mohammed Atta, who crashed the first plane into the Twin Towers.

    Working out of Germany, Binalshibh gathered information about flight training schools in the US and regularly transferred large sums of money to the future 9/11 hijackers. There were, therefore, a large number of references to the results of the German investigation in the old indictment against Binalshibh, which the Bush administration had hoped would be used in a trial heard before a military commission.

    Justice Ministry Alarmed
    Aside from that, federal prosecutors in New York will find it difficult to use confessions coerced using highly controversial interrogation methods such as waterboarding. "It is hard to imagine how the government could present a case against Ramzi Binalshibh where a significant portion of the government case would not be based on evidence gathered in Germany," says Thomas Durkin, who is a member of the ACLU John Adams Project and a member of Binalshibh's defense team.

    This explains why Holder's announcement of the trial has alarmed the German Justice Ministry in Berlin and its subordinate agency in Bonn, the Federal Office of Justice, which is responsible for mutual legal assistance.

    Germany's new Justice Minister Sabine Leutheusser-Schnarrenberger intends to maintain the course set by her predecessor: "In this case, we will also watch very closely to ensure that the assurances given are adhered to," she said. In order to verify that the US government keeps its word, the German Justice Ministry will team up with the Foreign Ministry to send German observers to monitor the trial in New York.

    But the defense flatly rejects the idea of proceeding according to the example set during the Moussaoui trial. At the time, it was decided that German evidence could only be admitted during the main proceedings, but not during the sentencing phase. This is "a distinction without a difference," says Binalshibh's lawyer Durkin, who is a Chicago-based former federal prosecutor.

    Ultimately, Moussaoui did not need to rely on help from German legal experts who questioned the admissibility of the evidence. He managed to escape the death penalty without their aid. One of the twelve jurors voted against death by lethal injection and Moussaoui was sentenced to life in prison.
    No One Knows Everything. Only Together May We Find The Truth JG


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    Cheney Accuses Holder of Wanting 'Show Trial' for 9/11 Plotters

    http://www.foxnews.com/politics/2009...rial-plotters/

    11/23/2009

    Former Vice President Dick Cheney suggested Monday that Attorney General Eric Holder wants a "show trial" for Khalid Sheikh Mohammed and four other alleged 9/11 conspirators who are to be tried in a civilian court just blocks away from where the World Trade Center once stood.

    Former Vice President Dick Cheney suggested Monday that Attorney General Eric Holder wants a "show trial" for Khalid Sheikh Mohammed and four other alleged 9/11 conspirators who are to be tried in a civilian court just blocks away from where the World Trade Center once stood.

    In an interview with conservative talk radio host Scott Hennen on Monday, Cheney called it a "big mistake" to try Mohammed in a civilian court rather than before a military tribunal.

    Cheney said the Obama administration has reverted back to a pre-Sept. 11 mindset, in which acts of terror are treated as criminal offenses or "law enforcement problems."

    "We had 3,000 dead Americans that day. That is not a law enforcement problem. That's an act of war. And you need to treat it as an act of war," Cheney said in the interview.

    The former vice president went on to question the administration's motives in making its decision, saying, "I can't for the life of me figure out what Holder's intent [is] here, in terms of having Khalid Sheikh Mohammed tried in a civilian court, other than to, to have some kind of show trial here."
    "They'll simply use it as a platform to argue their case," Cheney said of the 9/11 conspirators.

    Cheney also took issue with Obama for not yet announcing a decision on whether to send 30,000 to 40,000 additional troops to Afghanistan. The former vice president had previously criticized Obama for "dithering" on U.S. military strategy in the eight-year-old war.

    "The delay is not cost-free," he said. "Every day that goes by raises doubts in the minds of our friends in the region about what you're going to do. Raises doubts in the minds of the troops -- I worry that the delay and that time that it's taken to come to the decision will be very costly."

    On Monday, White House Press Secretary Robert Gibbs responded to suggestions that Americans may perceive the president as indecisive or uncertain on a troop surge in Afghanistan.

    "This is a complicated decision," Gibbs said during an afternoon briefing with reporters.

    "I'm not going to re-litigate what we litigated when the former vice president offered his advice previously," he added. "There are a series of decisions that have to be made, and the president is working through many of those decisions in order to come to what he believes is the best way forward for our national security."

    Obama called his national security team together Monday as he moves toward a decision on whether to send more forces -- the council's ninth meeting on the issue. Obama's announcement is expected as early as next week, according to administration officials.
    No One Knows Everything. Only Together May We Find The Truth JG


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    9/11 Widows Hit Cheney for Fighting KSM Trial

    http://www.nydailynews.com/blogs/dc/...-for-figh.html

    By Michael McAuliff
    11/24/2009

    Some 9/11 widows who want to see a terror trial in New York today questioned why a group strongly linked to Liz Cheney is leading the charge in opposition to the trial.

    Her father, after all, is the man many Democrats and liberals think broke the law in pushing for interrogation techniques now deemed torture by the Obama administration, and which were used on Al Qaeda plotter Khalid Shaikh Mohammed.

    The anti-trial group is led by Debra Burlingame — whose brother piloted one of the doomed planes — and who is a guiding light at 9/11 Families for a Safe & Strong America.

    The 9/11 Families group had as a springboard Keep America Safe, a Liz Cheney vehicle where Burlingame serves on the board.

    “Perhaps they’re trying to protect her father’s role in torturing these detainees,” said Lorie Van Auken, who lost her husband on 9/11. “And that’s actually what could keep us from seeing justice, is this torture that was done to these people because that evidence is not really evidence. It won’t be admissible anywhere.”

    Auken was speaking on a conference call organized by the liberal Human Rights First.

    Later, she declined to back off her statement. “You start to wonder why Liz Cheney would be organizing the 9/11 families,” she said. “It’s just a funny connection.”

    Below is the press conference Burlingame did today with Rep. Pete King and others, posted online by Keep America Safe, in which they call for the trial to be canceled and announce a Dec. 5 rally.
    No One Knows Everything. Only Together May We Find The Truth JG


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    9/11 Widows, National Security Experts, Federal Prosecutors Say Fearmongering Must Stop

    http://www.commondreams.org/newswire/2009/11/24-6

    NEW YORK - November 24 - National security experts, a former federal prosecutor, and 9/11 widows are calling for cooler heads to prevail as those opposed to New York-based federal trials for the five Guantanamo detainees accused in the 9/11 conspiracy ramp up their campaign of "fear and fables."

    "Those opposed to federal court trials for these men have speculated about a lot of things – our safety, procedural problems, time. I don't want speculation. I want results. Since the 9/11 attacks, the only forum that has given victims' families results in the war on terror is our federal courts," said Lorie Van Auken, a 9/11 widow.

    Monica Gabrielle, also a 9/11 widow, added, "Holding these trials in New York City guarantees victims' families and New Yorkers a front row seat to the justice we deserve and have waited for, for eight long years. It will allow us to watch our Constitution fulfill its promise of protecting our society, and it will mark another chapter in this painful journey to justice."

    In a recent study of 119 terrorism cases with 289 defendants filed since 2001 in the normal federal court system, Human Rights First found that of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. By contrast, the military commissions are a failed system that has secured only 3 convictions and their continued use threatens to perpetuate the legacy of failed trial and detention policies at Guantanamo.

    Van Auken is not alone is her support for bringing the federal trials to New York City. Mayor Michael Bloomberg, Senator Charles Schumer, and New York City Police Commissioner Ray Kelly have all voiced support for Attorney General Holder's decision to try the 9/11 defendants in federal court.

    Retired Brigadier General James P. Cullen, a New Yorker and former member of the United States Army Reserve Judge Advocate General's Corps, agrees, stating, "I lost a good friend at the World Trade Center, and I lost a good friend in Baghdad, but I think that the symbolism of bringing these guys to trial in New York is as equally important as assuring the world that when they are tried, they are going to get a full and fair trial. Bringing them to New York, which was the scene of the crime and the terrible incidents of September 11th, is particularly appropriate. When we convened the Nuremberg Trials, we deliberately chose Nuremberg as the site where we were going to convict those people who had formulated, and the symbol of the formulation had occurred in the city where so much of the horrendous work of the Nazis carried out was first imagined. I think we are going to do the same when we bring these people to New York and conduct their trials here."

    A chief concern among experts who support federal trials for those accused in the 9/11 conspiracy is ending the misconception that these men deserve "warrior status" – a distinction that has been one of Al Qaeda's most effective recruiting tools.

    From the organization's New York City office, Human Rights First President and Chief Executive Officer Elisa Massimino concluded, "The victims of 9/11 and the American public deserve to see justice done, and the best way to achieve that is by prosecuting these men in a credible criminal justice system where the focus will be on their culpability, not on the legitimacy or fairness of the proceedings. Moving these cases out of military commissions and into the federal courts is smart counter-terrorism strategy. It treats the perpetrators as the criminals they are and deprives them of the warrior status they crave. This is an important distinction and will help thwart their ability to recruit others to their cause."
    No One Knows Everything. Only Together May We Find The Truth JG


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    Rally Against Terrorist Trial in NYC

    http://www.theepochtimes.com/n2/content/view/25606/

    11/25/2009

    NEW YORK—A rally to protest the upcoming trial of 9/11 conspirators in New York City was announced in Battery Park on Tuesday morning by members of the 9/11 Never Forget Coalition. The decision to hold the trial of Khalid Sheikh Mohammed and four other co-conspirators in New York City was announced by President Barrack Obama and NY State Attorney General Eric Holder earlier this month.

    The coalition will hold the rally at noon on Dec. 5 in Foley Square with members of the 9/11 Never Forget Coalition, 9/11 victims, family members, first responders, members of the military, and veterans.

    Debra Burlingame, founder of the 911 Families for a Safe and Strong America said, “Our Rally on Dec. 5 will tell Attorney General Eric Holder, President Barack Obama, and their supporters in Congress: We will fight you all the way!” Ms. Burlingame is the sister of Charles F. Burlingame III, pilot of American Airlines flight 77, which crashed into the Pentagon on Sept. 11, 2001.

    The group sent a letter two weeks ago signed by 300 family members of 9/11 victims to President Obama, AG Holder and Defense Secretary Robert Gates asking them to reverse their decision to hold the trial in New York. The letter has since been signed by 120,000 Americans and is posted online at www.keepamericasafe.com/?page_id=1822

    The group is protesting the plan to hold the trial that will give enemy combatants of the U.S. constitutional protections by holding the trial in U.S federal court.

    Speakers at the press conference included Rep. Pete King (R- NY) Peter Regen, an active FDNY firefighter who has served two tours in Iraq and whose father, Donald J. Regen, died at the World Trade Center, and Andrew McCarthy, former assistant United States attorney for the Southern District of New York and prosecutor in the trial of the 1993 World Trade Center bombing.

    Members of the group Human Rights First also appeared at the press conference Tuesday morning. They claim that the 9/11 Never Forget Coalition is “fear mongering” and should allow the trial move forward.

    “Those opposed to federal court trials for these men have speculated about a lot of things—our safety, procedural problems, time. I don’t want speculation. I want results. Since the 9/11 attacks, the only forum that has given victims families results in the war on terror is our federal courts,” Stated Lorie Van Auken, a 9/11 widow in a press release.

    According to Human Rights First, a recent study states that of 119 terrorism cases with 289 defendants filed since 2001 in the normal federal court system, 214 of the cases have been resolved as of June 2, 2009, with 195 convictions either by verdict or by a guilty plea. By contrast, military commissions have secured three convictions.

    Mayor Bloomberg has voiced his support for the decision to hold the trial in federal court. Sen. Charles Schumer (D-NY) has asked that an estimated $75 million security costs to hold the trial in Manhattan be covered by the federal government.
    No One Knows Everything. Only Together May We Find The Truth JG


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    New York rally planned to protest 9/11 trial

    http://www.reuters.com/article/domes...5AN4XN20091125

    11/25/2009

    NEW YORK (Reuters) - A group against bringing the self-professed mastermind of the September 11 attacks to trial in a U.S. civilian court will hold a rally in New York demanding Washington reconsider its decision, the group said on Tuesday.

    The 9/11 Never Forget Coalition said it will hold a rally on December 5 at a park adjacent to the Manhattan federal courthouse where Khalid Sheikh Mohammed and four others will be tried just blocks from Ground Zero.

    No date has been announced for the suspects' transfer to New York or their first appearance in court.

    Debra Burlingame, a co-founder of the group, said the trial gives Mohammed the opportunity to wage "jihad in the courtroom." The group supports trying the men before a military tribunal.

    U.S. Attorney General Eric Holder has defended his decision to move the trials from the Guantanamo Bay prison in Cuba to a federal criminal court in New York, saying the men can be tried fairly and successfully in New York.

    The decision has divided the families of victims. Some say the trial is an opportunity to face the perpetrators of the September 11 attacks and help bring closure while others say the men should be treated like war criminals.

    "We are giving them the biggest stage that they could possibly want," said Tim Brown, a retired New York City firefighter who said he lost dozens of friends in the attack. "We are in a pre-9/11 mentality."

    Burlingame declined to estimate how many people she expected to attend the rally.
    No One Knows Everything. Only Together May We Find The Truth JG


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    9/11 families split on civilian court trials
    'Tea party' affiliate to join rally

    http://www.washingtontimes.com/news/...-court-trials/

    By Ben Conery
    11/26/2009

    Nearly two weeks after the Obama administration announced its intention to prosecute professed Sept. 11 mastermind Khalid Shaikh Mohammed and his fellow defendants in civilian court, family members of the terrorist attack's victims remain sharply divided on the issue.

    On Dec. 5, a group including Sept. 11 victims and family members plans to hold a rally protesting the administration's decision. The rally is being joined by a "tea party" movement affiliate, a sign that the conservative protest network is expanding its scope of issues.

    The rally is scheduled in Foley Square, the Lower Manhattan site of the federal courthouse chosen to hold the trials of the purported Sept. 11 conspirators.

    The 9/11 Never Forget Coalition, the group organizing the rally, said an online petition to stop the trials has already garnered 120,000 signers, and a letter signed by 300 Sept. 11 families protesting the decision has been sent to President Obama and other top administration officials.

    "This trial will be lawyer-assisted jihad in the courtroom," Debra Burlingame, whose brother was a pilot killed in the attacks, said during a news conference Tuesday. "When we grant a confessed war criminal access to due process so that he can use it to rally his fellow terrorists to kill more of our citizens and to target our military, that's jihad."

    A group called Tea Party 365, whose co-founder organized the first tea party protest in New York, said it also plans to participate in the rally. Kellen Giuda also sits on the board of directors of Tea Party Patriots.

    But Ms. Burlingame's opinion is not shared by all Sept. 11 families.

    With the terrorist attack claiming nearly 3,000 victims, it would be impossible to reach a consensus among all the families involved, said Monica Gabrielle, whose husband was killed in the attack. Ms. Gabrielle and other family members have been outspoken in their support for the administration's decision.

    "I don't understand what the frenzy is. We've done it before, and we've done it successfully," she said of prosecuting terrorism suspects in federal courts.

    Despite their differing opinions, Ms. Gabrielle said she supports the rights of Ms. Burlingame and others to protest the administration's decision.

    "What I have a problem with is the fear they are basing it on," Ms. Gabrielle told The Washington Times on Wednesday. "You've got to speak from a voice of reason."

    Ms. Burlingame and other opponents of the trial say bringing terrorism suspects to New York City is ill-advised and dangerous. They worry the trials will be costly, could make New York City susceptible to an attack and give Mohammed and his four fellow defendants a forum to spout jihadist rhetoric.

    It's a concern shared by many Republican members of Congress. And various recent polls, including from Fox News and CNN, show more Americans would prefer Mohammed be tried in a military tribunal than in a civilian court.

    But in an appearance on Capitol Hill last week, U.S. Attorney General Eric H. Holder Jr. remained resolute. Mr. Holder, who made the decision to hold prosecutions in federal court, said the move is in line with American legal values, and he is certain Mohammed and the others will be convicted.

    "I have every confidence the world will see him for the coward he is," Mr. Holder told the Senate Judiciary Committee. "I'm not scared of what [Mohammed] will have to say at trial - and no one else needs to be, either."
    No One Knows Everything. Only Together May We Find The Truth JG


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    Mental State Cited in 9/11 Case

    http://online.wsj.com/article/SB125928395078865773.html

    11/27/2009

    WASHINGTON -- When five defendants are brought before a New York federal judge to face charges for the terror attacks of Sept. 11, 2001, the first question may be whether some of them are competent to stand trial at all.

    Military lawyers for Ramzi Binalshibh, an accused organizer of the 9/11 plot, and Mustafa al-Hawsawi, the conspiracy's alleged paymaster, say their clients have mental disorders that make them unfit for trial, likely caused or exacerbated by years of harsh confinement in Central Intelligence Agency custody.

    The issue already has arisen in military-commission proceedings at the military's detention facility at Guantanamo Bay, Cuba. According to an August ruling by a military judge, prosecutors have made an "apparent concession" that Mr. Binalshibh "suffers from a delusional disorder-persecutory type" disorder. Mr. Binalshibh has been prescribed "a variety of psychotropic medications used to treat schizophrenia and/or bipolar disorder, including Haldol, Abilify, risperidone and Ativan," according to commission records.

    In October 2008, a military medical board reported Mr. Binalshibh may suffer from "severe mental disease" that could "impair his ability to conduct or cooperate intelligently in his defense."

    A military attorney for Mr. Hawsawi, Lt. Cmdr. Gretchen Sosbee, said the military judge ordered a mental evaluation of her client, but its results haven't yet been entered into the record.

    It long has been unconstitutional to prosecute people who are unable to understand proceedings against them or assist in their defense, whether in federal court, court-martial or military commission.

    However, Cmdr. Suzanne Lachelier, a lawyer for Mr. Binalshibh, said a military judge has refused to allow a full examination into her client's condition, in particular by denying access to any information regarding his treatment in CIA custody between 2002 and 2006. An order by the judge, Col. Stephen Henley, said that information was "not relevant" to Mr. Binalshibh's condition.

    In court papers, Cmdr. Lachelier cited Bush administration memorandums endorsing the use of sleep deprivation, solitary confinement and other harsh techniques intended to induce a prisoner's cooperation.

    Khalid Sheikh Mohammed is not the only accused terrorist set to go on trial in New York. But WSJ's Jess Bravin says two of KSM's co-accused have mental competency issues that may jeopardize a trial.

    Military records cited by the defense say Mr. Binalshibh "was seen 'acting out' in various manners, including breaking cameras placed in his cell" and covering cameras "with toilet paper...and with feces." At a June 2008 hearing, Mr. Binalshibh said "we're still in the black site" -- the term for CIA secret prisons. Mr. Binalshibh said he couldn't sleep because, among other reasons, his bunk is "always shaking automatically."

    Much remains unknown about the prisoners' mental state, and prosecutors may have evidence to demonstrate their fitness that isn't currently public.

    Justice Department spokesman Dean Boyd declined to comment specifically on the mental-capacity issue but said the government expects "a host of motions" to be filed. "It's the job of prosecutors to anticipate these challenges and plan their cases accordingly, and that is certainly being done in this case," he said.

    A strong defense case for mental unfitness may force prosecutors to choose between unappealing options. They could sever Messrs. Binalshibh and Hawsawi from the joint conspiracy trial, allowing the case against the defendants whose capacity isn't at issue to proceed.

    That would deprive prosecutors of a favored tool in conspiracy cases, because a joint trial allows the alleged guilt of one defendant to be imputed to the others. In this case, where the notoriety of alleged 9/11 organizer Khalid Sheikh Mohammed far exceeds that of his co-defendants, the separation could be beneficial to Messrs. Binalshibh or Hawsawi should they contest the charges.

    If federal prosecutors decide to pursue a joint trial, proceedings will have to wait until each defendant's fitness is established.

    In determining competence, "the key issue is the capacity to assist counsel," said Norman Poythress, a University of South Florida specialist in mental-health law.

    Last year, the Supreme Court established a two-tier system of mental capacity, allowing judges to find defendants able to stand trial yet unfit to represent themselves. Mr. Mohammed and two co-defendants -- Walid bin Attash and Ali Abdul Aziz Ali -- have been acting as their own attorneys before the military commission. Mr. Binalshibh asked to do so, but was denied until his mental competence has been determined.
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    Spin of Wheel May Determine Judge in 9/11 Case

    http://www.nytimes.com/2009/11/28/nyregion/28judge.html

    By BENJAMIN WEISER
    Published: November 27, 2009

    At first glance, the wooden wheel looks as if it might have been used to call out bingo numbers in a church fund-raiser. But sometime soon, a federal magistrate judge in Manhattan could be spinning the wheel in open court, unlocking a small door on one of its sides, and pulling out a sealed envelope containing the name of a judge.

    The tumbler that may be used to determine which judge is charged with overseeing the trial of Khalid Shaikh Mohammed and four others accused in the Sept. 11 terror attacks.

    That judge could well be charged with overseeing the trial of Khalid Shaikh Mohammed and four others accused in the Sept. 11 terror attacks. And that judge will have to consider questions as procedural as trial dates and as controversial and delicate as evidence gained through torture.

    The case could last years, and the judge who gets it will most likely be assigned security around the clock — for his or her lifetime.

    When Attorney General Eric H. Holder Jr. announced this month that the Obama administration would seek to have Mr. Mohammed and the others tried in civilian court in New York, he said that he was confident that “whatever judge is assigned to this case will maintain the dignity of the proceedings” and that the defendants would get a fair trial.

    For the moment, it is unclear whether the wheel will even be spun. Prosecutors could seek an indictment that would result in the case going to Judge Lewis A. Kaplan, who is presiding in the case of another suspected terrorist that is raising issues similar to those that could arise in the Sept. 11 matter.

    The question of who will preside over the case has become the subject of speculation in the chambers of judges and in the corridors of federal court on Pearl Street.

    “This entire case coming to New York is to demonstrate to the world that the system works — and part of that system is the wheel,” said Donna R. Newman, a lawyer whose clients have included Jose Padilla, the Brooklyn-born convert to Islam who was once designated as an enemy combatant (and was later convicted of conspiracy in federal court).

    Ronald L. Kuby, another lawyer whose clients have included terrorism defendants over the years, said: “As corny as it was watching that wooden bingo drum be spun, it did create a sense of impartiality. It would be a good thing in this case.”

    There are actually three wheels — labeled A, B, and C — that are used to assign most criminal cases. They sit in a row by the magistrate judge on the fifth floor of the courthouse.

    Wheel A is used for short trials; B for trials that are expected to last 6 to 20 days, and C for trials estimated to exceed 20 days.

    A judge who receives the Sept. 11 case may recuse him- or herself for a variety of reasons. The case would then be reassigned. In a recent case in Brooklyn federal court, for example, which uses a computer to assign cases randomly, it took four tries to assign a case involving a man charged in a Qaeda plot to set off bombs in the United States.

    The court’s chief judge, Raymond J. Dearie, who finally got the case, said that one judge assigned to the case was on senior status and was not supposed to be on the list of judges taking cases. A second judge had an irreconcilable conflict of interest that prevented her from sitting. And a third judge recused herself without explanation.

    “Take my word for it,” Judge Dearie said, “every judge in the courthouse would have liked to have had this case, fully realizing it’s going to be a real burden.”

    In Manhattan federal court, there are more than 20 active judges, along with a few on senior status (a sort of semiretirement), who appear to be eligible to receive the Sept. 11 case.

    Some have raised the question of whether a judge could volunteer for the Sept. 11 case. Under the court’s rules, a judge could offer to take the case only after it was randomly assigned to another judge. Mr. Kuby believes that would be inadvisable, saying, “Any judge who wants it should not have it.”

    “The only judge who would want this case is a judge who wants to stamp his or her mark on history,” he said, adding, “And the desire to do that tends not to make for the best judging.”

    If the wheel is not used, the Sept. 11 case could end up going before Judge Kaplan.

    Lawyers who have been mulling over this possibility presented the following premise: the judge has been handling the case of Ahmed Khalfan Ghailani, a suspected terrorist charged with conspiring in the 1998 bombings of American Embassies in Africa. Like the Sept. 11 defendants, Mr. Ghailani spent time in the C.I.A.’s secret prisons and at Guantánamo.

    But it is less well known that Mr. Ghailani is also one of nearly two dozen defendants, including Osama bin Laden, who were charged in a broad indictment with conspiring to kill Americans “anywhere in the world, including in the United States.”

    That indictment is also before Judge Kaplan.

    Prosecutors could bring a superseding version of that indictment, in which they charge the Sept. 11 plot as part of Mr. bin Laden’s global conspiracy to kill Americans.

    “The government certainly has arguments that a superseding indictment and assignment to Judge Kaplan is appropriate,” said Michael G. McGovern, a former terrorism prosecutor in Manhattan.

    He added that prosecutors could validly say: “We indicted bin Laden. He’s the leader of this conspiracy. K. S. M. is the field general who carried it out.”

    Prosecutors had no comment.

    In yet another possibility, prosecutors would try Mr. Mohammed on a 1990s-era indictment in the so-called Bojinka plot to bomb American jetliners as they crossed the Pacific. Judge Kevin Thomas Duffy presided in a 1996 trial in which three others were convicted.

    But Mr. Holder’s recent comments make that seem unlikely. The attorney general said the Sept. 11 defendants would be “charged for what we believe they did, and that is to mastermind and carry out the 9/11 attacks.”
    No One Knows Everything. Only Together May We Find The Truth JG


  10. #50
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    Bolton: Bringing Sept. 11 Trial to NYC Endangers Innocent Lives Unnecessarily

    http://www.foxnews.com/story/0,2933,577168,00.html

    Thursday, November 26, 2009

    This is a rush transcript from "On the Record," November 25, 2009. This copy may not be in its final form and may be updated.

    GRETA VAN SUSTEREN, FOX NEWS HOST: Well, like it or not, they are coming here. Five 9/11 co-conspirators, including Khalid Shaikh Mohammed, are coming to New York City for a trial in a federal civilian court. Opposition is loud and fierce.

    Former U.S. ambassador to the United Nations John Bolton joins us live. Good evening, Ambassador. And Ambassador, you're not wild about this idea, are you, sir.

    JOHN BOLTON, FORMER U.S. AMBASSADOR TO THE U.N.: No, I think it's a major strategic mistake by the administration. I think it reflects a pre- 9/11 mentality that you can treat terrorism like it's a law enforcement matter, rather than what it is, a war on the country. And I think the signal that it sends to the terrorists overseas is very, very dangerous for the country down the road.

    VAN SUSTEREN: Well, there are a couple of issues that I see. One is why a civilian court and not a military? And even if -- you know, even if it had -- even if the person makes the decision that it should be in a civilian federal court -- of course, is Eric Holder here, the attorney general is -- why New York City? Why not Montana or Gitmo, much like they did in the Oklahoma City bombing case was tried in Denver? You know, why New York?

    BOLTON: Well, I think on the first question, it really -- there's a lot more than just, Do you try them in a civilian court, or do you try them in a military court? In the first place, as a -- as a matter of looking at it through the war paradigm, the first thing you want to do capturing somebody like Khalid Shaikh Mohammed or many of these other people at Guantanamo is not worry about the trial for the terrorist acts they've committed but getting information from them that we can use in the continuing war. And I think the trial is really almost secondary to the larger strategic objectives.

    In terms of putting it in New York, you know, it is -- it -- one of the reasons it's attractive to Khalid Shaikh Mohammed is it's the center of media attention for him to make his case to the world. He's not a traditional defendant. He's not trying to prove his innocence. He's not trying to get an acquittal from the jury. He's there, as his lawyer has already said, to conduct a show trial. And I think the risk is it will draw other terrorists to New York to make their point, as well.

    VAN SUSTEREN: And of course, you made the comment you wouldn't bring your family there during the trial or something. I don't know if I read that wrong, but...

    BOLTON: Well, my -- my -- my daughter lives and works in New York, and I don't expect she'll pay any attention to that. But my point was that you are endangering innocent people's lives unnecessarily. I don't think there's any question the risk of terrorist attack goes up. We all hope federal, state and local authorities will be able to defend against it, but why give the terrorists the opportunity to begin with?

    VAN SUSTEREN: Well, taking it one step further to the whole issue of the trial, with the recognition that, you know, that's a decision that has been made and it's going to happen, the thing that strikes me is that guilty people are found not guilty every single day of the week. Not guilty people are convicted every day -- every day of the week, so it's an -- it's our best system we can do, but it's imperfect. We've got a guy who was waterboarded 183 times. The attorney general himself has testified that he says that's torture, so it's unlike anything that comes out there could be used against him. So the whole trial procedure is -- is at high risk, from the prosecution standpoint. Even though Attorney General Holder says, you know, that he's got a strong case, there is a risk.

    BOLTON: Look, Greta, I was a litigator, like you were, for many years, and you know, you can prepare as hard as you want for a trial. I never went into any trial absolutely convinced what the outcome was going to be. And I think the points you've made show why the law enforcement paradigm simply doesn't work here. A terrorist in this context is not just a bank robber on steroids. And the circumstances under which Khalid Shaikh Mohammed was apprehended, much of the evidence gathered, isn't in the context of a civil, constitutional society where you can have appropriate due process for criminal defendants.

    In a war, you don't have police tape marking off crime scenes. You don't have infantry soldiers carrying little glassine bags to put evidence in. People don't get Miranda warnings because it's not a criminal environment.

    VAN SUSTEREN: But I -- I don't -- I have never tried a case in a criminal -- I mean, in a military forum, but people who work within the military framework have an enormous amount of respect. I've seen juries where I never thought in a million years someone would be found not guilty because the jury's made up of the military people. So is there something fundamentally wrong in terms of -- of these military panels? Is -- you know, what's wrong -- why -- why not put them there? What's the argument against putting them there?

    BOLTON: Well, ultimately, I don't have any trouble when you have somebody who commits an act of terrorism like this, but I don't think it's an issue that you want to rush them into trial in a military tribunal. I want to make sure...

    VAN SUSTEREN: But in any tribunal -- I mean, I -- do you just want to hold them indefinitely or do you want to give them some sort of, you know, finality that we should, you know, figure out what to do with these people?

    BOLTON: Well, I'd hold them indefinitely in any case. I mean, even if you believe in the Geneva convention's applicability, which -- which is incorrect, but even if you did, you hold prisoners of war for the duration of the conflict, and I think this conflict is going to go on for a long time. The fact is military tribunals do give a considerable amount of justice. They are not show trials. The show trial we're going to see here is going to be put on by the defense.

    VAN SUSTEREN: What I don't understand, though, is if -- I mean, if we -- if the government insists on putting them on trial in a federal civilian -- a civil trial -- or a civilian trial, why not just send the judge down to Gitmo and do that there instead of bringing the whole the show and all the expense up to New York and all the risk to New York? Is there anything to stop them from moving the judge to the trial?

    BOLTON: Well, I think you've got a jury problem, although, you know, you've got another...

    VAN SUSTEREN: They're going to be sequestered anyway. They're going to be sequestered anyway, so sequester them at Gitmo. I mean, if -- if -- we're going to do that anyway to them.

    BOLTON: Yes. I mean, you've already got the president of the United States tainting the jury pool by saying that Khalid Shaikh Mohammed is guilty and should get the death penalty. I can't wait to see the arguments before the judge on that issue.

    VAN SUSTEREN: Well, it'll be -- it'll be interesting to see what happens. And there a lot of people who are unhappy about this. And of course, we're going to watch it unfold. Ambassador Bolton, thank you, as always. Thank you, sir.

    BOLTON: Thank you.
    No One Knows Everything. Only Together May We Find The Truth JG


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