'Heads I Win, Tails You Lose': In 9/11 Case, KSM Won't Walk Free Even If Found Not Guilty
Attorney General Eric Holder acknowledged on Wednesday a previously unspoken proviso to the controversial decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four co-conspirators in a federal court in New York: even if the defendants are somehow acquitted, they will still stay behind bars.
Holder's comments at a hearing before the Senate Judiciary Committee would seem to turn the criminal-justice system on its head. The whole point of a criminal trial is to determine guilt—and if the government fails to make its case beyond a reasonable doubt, the defendant walks free.
At least that's the way the system usually works.
But pressed today by Sen. Lindsey Graham, Republican of South Carolina, about what might happen "if, by some one in a million fluke, one of the defendants were acquitted," Holder responded in effect that they won't be released.
First, he noted, Congress has already barred any Guantánamo detainees from being released inside the United States. But then, pressed again about what would happen "if one of these terrorists" in the future were found not guilty or given a short sentence, Holder agreed that the Justice Department would still retain the authority to lock them up as enemy combatants.
"I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability," Holder said.
"Yes," replied Graham. "So in the Sheikh Mohammed case, we've never going to let him go if something happened wrong in the federal court."
Holder's comments were not the first time the administration has asserted its plans to continue some form of indefinite detention—a legal concept that was central to the Bush administration's philosophy for dealing with detainees.
President Obama (who acknowledged today that he won't meet his deadline for closing Gitmo by next January) first drew fire from civil-liberties groups when he raised the prospect of "prolonged detention" for some detainees during his National Archives speech last May. ("We are not going to release anyone if it would endanger our national security," Obama said then.)
But Holder's responses today were the first time the idea has been specifically mentioned in the context of the 9/11 trial, giving criminal-defense lawyers an opportunity to poke fun at the Justice Department's rationale behind the decision to try the case in federal court.
"It's heads I win, tails you lose," says Joshua Dratel, a top New York criminal-defense lawyer who has represented numerous defendants in terrorism cases. "It does unfortunately ruin the effect of the notion that we are bringing them to federal court to uphold the rule of law, if you say, 'If the rule of law doesn't work, we'll try something else.' "
To be sure, Holder later expanded on his answer when another Republican senator, John Cornyn of Texas, pushed him on the same question.
What would happen, Cornyn asked, if a federal judge were to decide that Mohammed had been denied his constitutional rights—such as not being advised of his Miranda rights (to be represented by a lawyer)—and orders the Justice Department to let him go?
"We have taken the view that the judiciary does not have the ability [to] require us to, with people who are held overseas, to release them," Holder said.
But Holder added that in the case of Mohammed, "there are other legal things we can do with him"—apparently a reference to other charges the Justice Department might bring against him beyond orchestrating the 9/11 case.
"You can certainly hold people in connection with matters that are pending," said Holder. "And we have the capacity to make sure that Khalid Sheikh Mohammed is not released into the United States."
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Michael Isikoff has been an award-winning investigative correspondent for Newsweek since 2004. He has written extensively on the U.S. government's war on terrorism, the conflicts in Iraq and Afghanistan, presidential politics and other national issues. His book, "Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War," co-written with David Corn, was an instant New York Times best-seller when it was published in September, 2006. The book was hailed by the New York Times Book Review as "fascinating reading" and "the most comprehensive account of the White House's political machinations" in the run up to the war in Iraq. Since January 2009, Isikoff has been an MSNBC contributor, making regular appearances on the Rachel Maddow Show and Hardball w/ Chris Matthews.
Ever since the events of September 11, Isikoff has broken repeated stories about the U.S. government's war on terror and won numerous journalism awards. His blog "DeClassified: Investigative Reporting in Real Time," which appears regularly on Newsweek's Web site and is written with MarkHosenball, has become a must-read for senior U.S. intelligence officials. Isikoff and Hosenball won the 2005 award from the Society of Professional Journalists for best investigative reporting online.
Isikoff's June 2002 Newsweek cover story on U.S. intelligence failures that preceded the 9-11 terror attacks, along with a series of related articles, was honored with the Investigative Reporters and Editors top prize for investigative reporting in magazine journalism. He was honored, along with a team of Newsweek reporters, by the Society of Professional Journalists for coverage of the Abu Ghraib scandal. For that coverage, Isikoff obtained exclusive internal White House, Justice Department and State Department memos showing how decisions made at the highest levels of the Bush administration led to abuses in the interrogation of terror suspects. Isikoff was also part of a reporting team that earned Newsweek the National Magazine Award for General Excellence in 2002, the highest award in magazine journalism, for their coverage of the aftermath of the September 11 terror attacks.
Isikoff's exclusive reporting on the Monica Lewinsky scandal gained him national attention in 1998, including profiles in The New York Times and The Washington Post and a guest appearance on "Late Show with David Letterman." His coverage of the events that lead to President Bill Clinton's impeachment earned Newsweek the prestigious National Magazine Award in the Reporting category in 1999. Isikoff's reporting also won the National Headliner Award, the Edgar A. Poe Award presented by the White House Correspondents Association and the Gerald R. Ford Journalism Prize for Reporting on the Presidency. In 2001, Isikoff was named on a list of "most influential journalists" in the nation's capital by Washingtonian magazine.
Isikoff is the author of "Uncovering Clinton: A Reporter's Story," a book that chronicled his own reporting of the Lewinsky story and was hailed by a critic for The Washington Post-Los Angeles Times news service as "the absolutely essential narrative of the scandal with revelations that no one would have thought possible." The book, also a New York Times bestseller, was named Best Non-Fiction Book of 1999 by the Book of the Month Club.
Isikoff came to Newsweek from The Washington Post, where he had been a reporter since September 1981. There he covered the Justice Department and the Persian Gulf War, reported on international drug operations in Latin America and worked on the Post's financial news desk. Isikoff graduated from Washington University with a B.A. in 1974 and received a Masters in Journalism from Northwestern University's Medill School of Journalism in 1976.
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