David Raskin was a prosecutor at the U.S. Justice Department, where he specialized in terrorism and national security cases, for more than 20 years. He now heads the global investigations firm Nardello & Co.’s national security practice.
As the 25th anniversary of the Sept. 11, 2001, attacks approaches, I still think about the case that never happened.
In 2009, I was preparing to help lead what would have been the most important criminal prosecution in American history: the trial in a federal courthouse in Lower Manhattan of Khalid Sheikh Mohammed and his alleged co-conspirators for orchestrating the murder of 2,977 people. It would have been a civilian trial, in open court, before a federal judge, held only a few blocks away from where the twin towers once stood.
Had it gone forward, it would have been the Justice Department’s finest hour.
The case was to be tried before Judge Lewis A. Kaplan of the Southern District of New York, a no-nonsense jurist with deep experience handling complex, high-profile terrorism cases. Kaplan presided over the 2010 trial of Ahmed Khalfan Ghailani, a former Guantánamo detainee charged in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. From arraignment to sentencing, that case took a little more than a year and a half.
I can imagine how Kaplan would have responded had Mohammed tried to grandstand in court — with swift, unsentimental control, enforcing the rules of his courtroom without theatrics or indulgence. It would have been orderly and dignified. The public deserved to see such a trial, the victims were entitled to see it, and the Justice Department could rightly have taken pride in delivering it.
The evidence would have spoken for itself. Critics of civilian trials in the case warned that jurors could not bear to relive the horror of Sept. 11 or that classified evidence could not be handled safely. That was wrong. Federal courts had already convicted dozens of terrorists — including Ramzi Yousef, mastermind of the first World Trade Center bombing, and Zacarias Moussaoui, once called the 20th hijacker — using lawful, tested procedures designed to balance the public’s right to see powerful evidence, the defendant’s right to a fair trial and the nation’s interest in protecting intelligence-gathering sources and methods.
In the Mohammed case, we would not have relied on statements tainted by torture. Unlike the military commissions underway at Guantánamo Bay, Cuba, which planned to use so-called clean team FBI interrogations conducted after years of abusive detention until a military judge recently suppressed them in Mohammed’s case, a civilian prosecution would have had no need to flirt with legal gray zones. The admissible evidence was overwhelming. It included financial records, communications, co-conspirator testimony, physical evidence, Mohammed’s own uncoerced admissions and some surprises that have never been made public.
That trial would have ended in conviction long ago, as the evidence demanded. The defendants might have received death sentences, or they would have been condemned to spend the rest of their lives in the federal supermax prison in Florence, Colorado. I have been there. It is the last place on earth any convict wants to end up.
But none of this happened.
The moment Attorney General Eric Holder announced in November 2009 that Mohammed would be tried in Manhattan, a chorus of opposition erupted. Some critics insisted that Sept. 11 was not a crime but an act of war, and that the perpetrators therefore deserved the “rough justice” of a military commission, not the protections of the Bill of Rights. Others spun up security fantasies, generating ridiculous fears the New York police commissioner used to justify an outlandish estimate of security costs. Still others complained about the inconvenience of it all, lamenting the burden of street closures and traffic jams.
Shame on all of them.
They did not understand how broken the military commissions already were. Our push to move the case to federal court was not ideological. It was about getting the job done. The commissions were a brand-new, untested system, plagued by endless litigation over their legality and procedures. And, ironically, they turned out to be more defense-friendly than civilian courts, reflecting the military justice system’s traditional role in protecting the rights of accused U.S. service members. Far from being the instruments of swift justice many envisioned, the commissions became a defense lawyer’s dream.
Nor did critics understand the detention conditions at Guantánamo. Mohammed and his co-defendants were not desperate to leave. Pretrial detention at the now-closed Metropolitan Correctional Center in Manhattan was far less appealing. Yet the White House wavered. President Barack Obama, who entered office pledging to close Guantánamo and end the commissions, announced in May 2009 that instead they would continue, albeit with reforms. That equivocation proved fatal. It signaled weakness and emboldened opponents of civilian trials in Congress and elsewhere.
At the height of the backlash, what was needed was a clear, unequivocal statement from the Oval Office: “Knock it off. I stand by my attorney general. We are doing this.” But that never came. Congress stepped into the breach, eventually barring the transfer of Guantánamo detainees to the mainland for civilian trials. The plan to try Mohammed and the others in New York faded.
The Justice Department bears responsibility as well. Its hand-wringing about where cases should be brought, who should lead them and how much political risk was tolerable ate up time we did not have. Even worse, leaders who sensed the White House’s lack of resolve chose self-preservation over principle. Though Holder fought hard, with a few loyalists by his side, too many senior officials — skilled at cultivating favor rather than trying cases — declined to stick their necks out. They mouthed empty support as the case slipped away.
The result was a moral and legal limbo that persists more than two decades later. I predict there will never be a completed military commission trial for Mohammed and the other Sept. 11 defendants. The case is now before its fifth judge. Proceedings have dragged on and on, mired in disputes over mistreatment, tainted evidence and even basic procedure. The military judge ruled last month that the case will go to trial in June 2028, but there is a good chance that won’t happen, given the challenging issues and one or more appeals still to be decided.
I sleep soundly knowing that Moussaoui, whom I helped convict, will spend his remaining days in federal prison under a final judgment that ensures he will never be released. I worry, though, that Mohammed will remain in law-of-war detention, a status that lasts only as long as politicians say the United States is “at war” with al-Qaeda. Although he probably isn’t going anywhere, I can imagine a shift in political winds that could lead to the release of lesser-known figures such as Mustafa al-Hawsawi, accused of quietly funneling tens of thousands of dollars to the hijackers, ensuring the attacks would happen.
On this anniversary, when we hear about resolve and remembrance, realize that remembrance also includes reckoning. All Americans must reckon with the fact that the Justice Department missed a once-in-a-generation opportunity to demonstrate the strength of American law. That failure haunts me. And it should haunt the country.
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