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Stateless enemies of the state

Legal | The challenges to bringing 'totemic' terrorists to trial

Issue: "Homegrown terror," Dec. 5, 2009

In the middle of June 1942, two German U-boats landed on the shores of the United States, one on Long Island, N.Y., and another on Pointe Vedra Beach south of Jacksonville, Fla. The U-boats were loaded with chests of detonators and explosives suitable for a year's worth of operations targeting U.S. cities and military installations. Aboard were eight Nazis who spoke perfect English and had American ties. Most of them immediately changed out of their uniforms and buried them in the sand, where the Coast Guard later found them. That simple guerrilla tactic made the Hitler hit men no longer eligible for POW status if caught-they could not be identified with an army and an observable chain of command.

When they were caught, two surrendered, were held and repatriated after the war. The other six were tried by a military tribunal and executed three months later.

Enter Khalid Sheikh Mohammed and his four 9/11 co-conspirators. As an al-Qaeda leader captured in Pakistan by CIA agents in 2003, he wore no uniform and answered to no observable chain of command. At the time of his capture, The Wall Street Journal noted: "The terror leader could face months, if not years, of interrogations." That turned out to be true. It also reported, "Washington has stressed that its priority isn't to prosecute terrorists, but to gather intelligence to block future attacks." That, according to former deputy attorney general Paul McNulty and others I have spoken to at the Justice Department, was the initial purpose of detaining terror suspects at Guantanamo: to prevent future attacks. Only later did the Bush administration, along with the Supreme Court and Congress, create military commissions for the purpose of trying KSM and others.

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That history helps to explain the monumental challenges attached to Attorney General Eric Holder's decision, announced Nov. 13, to prosecute KSM and his co-conspirators in open federal court. To begin with, it's been more than a decade since KSM hatched the 9/11 plot, and over six years since his capture. Expect motions to dismiss on the basis that his constitutional right to a speedy trial, and the Speedy Trial Act itself, have been violated.

Next, expect challenges to the admissibility of evidence. Much of it was gathered in this case to protect the country, not for use in court, especially a civilian court. McNulty, who as U.S. Attorney supervised the prosecution of Zacarias Moussaoui, the "20th hijacker" of 9/11, said that trial lasted 4½ years, largely due to motions on witnesses and evidence that took the case to the U.S. Circuit Court of Appeals multiple times. Considering that some of the evidence on KSM was obtained through waterboarding and other tactics, challenges are likely.

Expect defense lawyers also to engage in what's called "graymailing," demanding classified information in the hope that prosecutors refuse, setting up a motion to dismiss the case.

Then consider security challenges. In 2000 a terrorist suspect in the same Manhattan detention center where KSM is likely to be held loaded a plastic squeeze bottle with hot pepper juice, sprayed a security guard to blind him, then using a hair comb sharpened to a point stabbed the guard's eye so deeply that he sustained permanent brain damage. KSM is "a totemic figure" among terrorists, noted former Attorney General Michael Mukasey. And the 9/11 Commission concluded in its final report, "No one exemplifies the model of the terrorist entrepreneur more clearly than Khalid Sheikh Mohammed."

McNulty's conclusion: "I have very serious concerns about the wisdom of this decision. I believe bringing KSM in particular and the group as a whole to New York places extremely dangerous circumstances on our legal system and our law enforcement."


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