Special Report

Know When to Hold Them

What happens if Khalid Sheikh Mohammed & Co. are set free?

By 12.17.09

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So what happens if Khalid Sheikh Mohammed and other 9/11 masterminds, whose trials Attorney General Eric Holder has decided will take place in the criminal justice system in New York, get off on a technicality or are somehow O.J.-Simpsoned by a jury? Can we still hold them? If not, where do they go?

These questions have been on the minds of millions of Americans, including members of the Senate Judiciary Committee. The Committee recently convened an oversight hearing to examine Holder's decision to bring the perpetrators of the worst-ever terrorist attack on American soil to trial in civilian court, rather than before a military commission, where legal procedures more in line with the wartime circumstances of the enemy's capture would apply. Holder's responses to these questions before the committee, however, reveal a troubling lack of recognition that a lot can go wrong once you bring KSM and company into the Article III court system -- including having to contend with what the Supreme Court may have to say about what happens to these defendants if something indeed does go wrong at trial.

During the hearing, in response to a question from Senator Herb Kohl (D-Wisconsin) about Holder's game plan in the event of acquittal or mistrial, Holder stated he had instructed the prosecutors: "Failure is not an option." This response was met with audible laughter from 9/11 family members in attendance. The absurdity of the Attorney General's "trust me" approach was palpable.

But even Holder has conceded -- perhaps inadvertently, perhaps not -- that the fate of these uniquely situated defendants should his team fail to secure a conviction is really not up to him. Take his written response to Committee questions preceding his live testimony:

"Where we have legal detention authority, as the President has stated, we will not release anyone into the United States if doing so would endanger our national security or the American people."

Interesting choice of words.

The question of whether such legal authority exists, of course, will ultimately rest not with Holder, but with the judge presiding over the case. So while Holder and Obama cast themselves as tough guys who refuse to release a dangerous terrorist into the United States in the event of inadmissible evidence, mistrial, or acquittal, this posturing is effectively nothing more than, as Cully Stimson of the Heritage Foundation aptly describes it, punting to the judiciary.

This is all the more so in light of what the Supreme Court has said, and may possibly say in the near future, about the matter of indefinite administrative detention.

The Court weighed in on this issue in the 2001 case, Zadvydas v. Davis. Zadvydas, a resident alien born to Lithuanian parents, was convicted of a crime in the United States and, after serving his prison sentence, was further confined pending deportation. The statute that the Department of Justice was relying on for detention provided for 90 days to deport Zadvydas, and allowed for certain classes of aliens -- including aliens removed for national security reasons or judged by the Attorney General to be a risk to the community -- to be detained indefinitely beyond the 90-day removal period.

No country would take Zadvydas, and his detention went beyond the statutory 90-period. The Supreme Court weighed in, stating: "…once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." The Court did allow for the possibility that a certain class of deportable aliens could be indefinitely detained -- those to whom a "special justification" applied, one that "outweighs the 'individual's constitutionally protected interest in avoiding physical restraint.'" The Court then went one step further and said that legislation authorizing indefinite detention might be narrowly applied "to a small segment of particularly dangerous individuals…say suspected terrorists." But Zadvydas did not fit that category, making his detention unconstitutional by virtue of his physical presence in the United States.

While defenders of Holder's decision to try 9/11 suspects in civilian court might be tempted to point to Zadvydas to show that these defendants fit into the Court's "special justification" group that could constitutionally be held indefinitely after a failed trial, it is cold comfort. Zadvydas after all still carved out a presumption against indefinite detention for deportable aliens. And in any event, this is the Court that since 9/11, in the midst of war, has steadily granted more rights to the terrorists we are fighting -- ruling in Hamdi that American citizens detained as unlawful combatants were entitled to challenge their detentions before a judge; ruling in Hamdan that military commissions had to comply with the Uniform Code of Military Justice and the 1949 Geneva Conventions; and ruling in Boumediene that foreign enemy combatants were entitled to habeas review in federal court. All this of course was before the confirmation of liberal justice Sonya Sotomayor to the bench, who may be followed by additional left-leaning nominees in the not-too-distant future.

Then we have the remaining Uighur detainees at Gitmo. The Supreme Court recently agreed to hear their case, in which their attorneys will argue that they have a constitutional right to be released into the United States. Although these detainees are in fact trained jihadists captured in Afghanistan, our government previously (and erroneously) determined that they are not a threat to the United States because their primary grievance is with China, and are therefore cleared for release. However, because no other countries are willing to take these remaining apparently not-so-harmless Uighurs, they remain at Gitmo.

If the Court rules in their favor and orders their release into the United States, and KSM's case is somehow thrown out, his attorneys will surely argue that their client's situation is sufficiently similar to that of the Uighurs. They both will effectively have been "cleared", they will argue, and cannot constitutionally be held indefinitely simply because no other country will take them.

This may seem like a range of hypotheticals. Maybe Holder's team will actually get slam-dunk convictions in Article III courts. Maybe, in the event they do not convict, another country will take in KSM and his co-conspirators. Maybe the government will have legal grounds to detain KSM indefinitely inside the United States after all.

Maybe. But if we are required now to look at what may appear to be outlandish scenarios, it is because the Attorney General has chosen to take a gamble on criminal trials, and force the rest of us to assume all the risks that go with them -- including the risk that we will be legally unable to hold the perpetrators of 9/11 now in custody and have to release them here.

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About the Author

Ben Lerner is Vice President for Government Relations at the Center for Security Policy in Washington, D.C.