Plan to try 9/11 suspects in NYC draws critcism

Associated Press

WASHINGTON — Attorney General Eric Holder had just announced that accused 9/11 mastermind Khalid Sheikh Mohammed and four alleged accomplices would stand trial in New York when the blistering critiques erupted.

"Unconscionable," declared Sen. John Cornyn, R-Texas. "Dangerous," said former New York City mayor Rudy Giuliani. "An unnecessary risk," said Sen. Jon Kyl, R-Ariz. Democrat Sen. Jim Webb of Virginia called Friday''s decision to move Mohammed would from Guantanamo Bay, Cuba, misguided, saying war criminals "do not belong in our courts."

Legal analysts describe the decision to try Mohammed in a civilian federal court as a high-stakes gamble by President Obama. They say the enormous legal challenges will test his administration''s counterterrorism strategy and the strength of the U.S. criminal justice system.

"I can''t think of another case with so much riding on it," says Ron Woods, a former federal prosecutor who represented convicted Oklahoma City bombing conspirator Terry Nichols.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, says the prosecution can demonstrate the "power" of the U.S. justice system. "We have a judicial system that is the envy of the world," Leahy told CBS'' Face the Nation. "Let''s show the world that we can use that power."

For Obama, the decision marks a crucial step toward fulfilling his campaign pledge to close the military detention center at Guantanamo Bay, a stark reversal of Bush administration policy.

"The president believes it is important to get it done and to end this chapter in our history," senior Obama adviser David Axelrod said Sunday on CNN''s State of the Union.

Mohammed, the most senior al-Qaeda operative in U.S. custody, now becomes the face of that effort. Although Holder says he is "confident" in the evidence, the path to a successful prosecution is littered with legal challenges:

*How will prosecutors win a case that may be damaged by interrogators who subjected Mohammed to waterboarding, which simulates drowning, after his 2003 capture?

* Can the U.S. court system stage an open trial in a case based on so much classified evidence?

*Will the case stay in New York, where defense lawyers will likely question whether impartial jurors can be found?

"We''re plowing new ground here," says University of Wisconsin law professor Frank Tuerkheimer, a former U.S. prosecutor.

''A major problem''

The harsh interrogation methods used against Mohammed are the greatest threat to the prosecution, legal analysts say.

Within a month after his capture in March 2003, CIA officers waterboarded the top al-Qaeda operative 183 times, according to government documents made public this year.

"If I were defense counsel, I would feel fairly confident that I could get a substantial amount of (evidence) excluded," says John Gibbons, a former chief U.S. appeals court judge who supports Holder''s decision. "It will likely be a major problem."

Holder suggested last week that he expected defense lawyers to raise the issue of torture. He said he is confident in the strength of the case, which he said features evidence not yet publicly known.

"I can''t believe that (prosecutors) would bring a case like this in federal court, if they were relying on evidence that a court might not admit," says Jamie Gorelick, a deputy attorney general in the Clinton administration and 9/11 Commission member.

The intelligence argument

Among the most compelling arguments against moving Mohammed and the other 9/11 plotters to civilian court, Kyl says, is that the government could be forced to give up valuable intelligence sources and methods used to gather evidence against the al-Qaeda operatives.

Kyl says the 1995 trial of Omar Abdel Rahman, also known as the "Blind Sheik," provided al-Qaeda with "valuable information" about U.S. intelligence operations, "making the job of fighting terrorists tougher." Rahman, convicted in a plot to blow up New York landmarks, was sentenced to life in prison.

Tuerkheimer says any potential loss of intelligence would likely be minimal because of the years that have elapsed between Mohammed''s 2003 arrest and any future trial date.

"By the time his case comes to trial, the whole intelligence system will have been rebuilt," Tuerkheimer says.

A trial at Ground Zero

By choosing New York City as the site of the trial, Holder has invited a legal challenge to move it from the shadow of the 9/11 attacks, analysts say.

"I would think that this case would have to be moved out of New York just to give some semblance of a fair trial," Woods says. In 1997, the bombing prosecutions of Timothy McVeigh and Nichols were moved from the federal courthouse in Oklahoma City, which was damaged in the attack, to Denver. McVeigh was convicted and executed. Nichols is serving life in prison.

In New York, the federal courthouse is about 20 blocks from where the World Trade Center once stood.

On ABC''s This Week, Giuliani said Sunday the high-profile trial "creates an extra risk" to the city.

Woods says a trial could attract threats from al-Qaeda or its sympathizers. "Are you going to have to guard the judge for the rest of his life?" he asks.

Yet Gorelick says New York has "ample experience" dealing with terrorism cases. "I think it is fitting that these suspects are going to be tried in New York," she says. "We have to be able to try cases someplace, why not New York?"