US Attorney General Eric Holder on Nov. 13 announced that the government will pursue federal charges against five men accused of conspiring to commit the 9-11 terrorist attacks. Khalid Sheikh Mohammed, Ramzi Bin Al Shibh, Walid Bin Attash, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi—all currently detained at Guantánamo Bay—will be tried in a Manhattan district court by prosecutors from the Southern District of New York and the Eastern District of Virginia. Holder said that he recommended that the men be tried in civilian court after a case-by-case review conducted by the Department of Justice and the Department of Defense according to a new protocol announced in July. Addressing concerns that the civilian court system would be unable to prosecute high-level terrorism cases, Holder said he is "confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years."

The men have previously faced charges before military commissions at Guantánamo, but those proceedings were delayed in May and September after being suspended for 120 days in January. Saying that "it is important that we be able to use every forum possible to hold terrorists accountable for their actions," Holder also announced that five other men held in connection with the October 2000 attack on the USS Cole in Yemen will be tried by military commissions. The Military Commissions Act was amended last month to ensure that due process rights are afforded to terrorist suspects.

Earlier this month, the US Senate voted 54-45 to defeat an amendment to an appropriations bill that would have prevented Guantánamo detainees accused of involvement in 9-11 from being tried in federal courts. In October, President Barack Obama signed into law the Department of Homeland Security Appropriations Act of 2010, which allows for Guantánamo detainees to be transferred to the US for prosecution and requires certain information about each transferred detainee to be disclosed to Congress, including costs, legal rationales, and possible risks. The legislation came after Holder indicated that the Obama administration might miss its January deadline for closing the military prison at Guantánamo Bay. (Jurist, Nov. 13)

Military commission for Omar Khadr?
Holder also annoucned that Canadian Guantánamo detainee Omar Khadr will likely be tried in the US military commission system. Speaking at the news conference, Holder responded to a question on Khadr by saying, "Well, we'll look at the Khadr matter. At this point, it is...one of the cases designated for...a commission proceeding. And we will, as that case proceeds, see how it should be ultimately treated." The announcement came the same day that the Supreme Court of Canada heard arguments on the Canadian federal government's appeal of a lower court decision ordering the government to press for Khadr's release and repatriation.

In October, a US military judge dismissed Khadr's military lawyer in accordance with Khadr's request. Khadr has allegedly admitted to throwing a hand grenade that killed a US soldier in Afghanistan, and was charged in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying. (Jurist, Nov. 13)

Gregory Craig resigns as White House counsel
Holder's announcement came with a White House announcement that Gregory Craig is resigning as White House Counsel and will be replaced by Bob Bauer, Obama's personal attorney. Craig's resignation, effective in January, comes after months of criticism of his management of Guantánamo Bay policy initiatives, including the ban on torture and the release of documents on the treatment of terrorism suspects under the Bush administration. Craig gained notoriety by leading former president Bill Clinton's defense during his 1998 impeachment proceedings. In 2000, he represented the father of Elian González in his successful effort to gain custody of his son and bring him back to Cuba from the US. In 1981-82, Craig defended John Hinckley, who was accused of an assassination attempt on former president Ronald Reagan. Obama praised Craig's service as White House counsel, stating that he "will continue to call on him for advice in the years ahead." Craig will be the highest official to step down from the Obama administration since appointments last November.

Craig's policy management is not the only issue that has come under fire for the administration's handling of Guantanamo Bay. The Center for American Progress released a report this week criticizing the White House for several shortfalls in its decision-making process. The report claims the administration's most significant mistakes were the decisions to keep a modified version of the Bush-era military commissions and its request of Congress for $80 million to close the facility and relocate the detainees, which provided impetus for Congressional opponents to obstruct the process. (Jurist, Nov. 13)

See our last post on the 9-11 investigations and the detainment scandal.

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