Former Attorney General Eric Holder slammed the “political hacks” who blocked the trial of accused 9/11 terrorists in federal court nearly 15 years ago, saying those politicians owed an apology to the families of the attack victims for delaying justice against Guantanamo Bay detainees, whom Holder said would be “nothing more than a memory” if tried and convicted in the United States.
After years of proceedings in a largely untested military commissions system in Guantanamo Bay that has been described as “Kafkaesque” and has been mired by seemingly endless delays, the Pentagon announced Wednesday that accused 9/11 “mastermind” Khalid Sheikh Mohammed and two of his co-defendants, Walid Muhammad Salih Mubarak Bin ‘Attash and Mustafa Ahmed Adam al-Hawsawi, had reached a plea deal that will spare them the death penalty.
In 2009, then-Attorney General Eric Holder stated that Mohammed and four others will face trial in a federal court in Manhattan, promising to seek the death penalty in the case. However, his idea encountered strong political opposition from Republicans and many Democrats in Congress, who prohibited any inmates held at the military detention facility established on leased territory in Guantanamo Bay, Cuba, from being transported to America to face justice. Holder stated eleven years ago, in 2013, that Mohammed and his friends would be “on death row as we speak” if the case had been heard in federal court, as he had requested.
Now, more than 20 years after Mohammed, also known as KSM, was apprehended in Pakistan and tortured by the CIA, Holder claims military prosecutors got the best deal possible given the circumstances. But he criticized Congress for impeding a federal trial that would have resulted in faster justice.
“The persons in charge of creating this dreadful agreement did their best. “They were dealt a bad hand by political hacks and those who lost faith in our justice system,” Holder said to NBC News on Thursday.
“If my decision to try KSM and his confederates in the tested and effective federal court system had been followed they would be nothing more than a memory today,” Holder said the press. “families who criticized my decision should apologize to Families who lost loved ones at one of America’s darkest times. I hope the media will ask them if they would now confess the craven nature of their acts.”
Long before attempting to overturn Donald Trump’s 2020 election loss based on lies about voter fraud (resulting in pending criminal charges and a $148 million defamation verdict), former New York City Mayor Rudy Giuliani was at the forefront of opposition to a Sept. 11 trial in federal court in Manhattan. On November 15, 2009, he went on three different television stations to criticize Holder’s plan, arguing that the federal court system, not the untested military commissions procedure, would “go on forever.” Giuliani’s spokesman did not immediately respond to a request for comment.
In retrospect, it is difficult to argue that the federal court system would have taken longer to decide the military commissions, or that Mohammed and his co-defendants would have received a more lenient sentence in federal court. Even if a federal trial did not result in the death penalty, Mohammed and his allies, if convicted, would have spent their remaining days in a federal supermax prison with severe restrictions, rather than an expensive, customized facility in the Caribbean, where they have comparatively greater access to amenities than they would under the most stringent restrictions imposed by the federal Bureau of Prisons on convicted terrorists.
That group includes Dzhokhar A. Tsarnaev, one of the brothers who carried out the 2013 Boston Marathon bombing. Tsarnaev was found guilty in 2015, less than two years after the explosion, and has been on death row in ADMAX Florence in Colorado, the supermax federal prison known as the “Alcatraz of the Rockies,” for nearly a decade.
Meanwhile, the Guantanamo military commissions have moved slowly, with no notable progress made until this week on crimes committed 23 years ago, in 2001, as of next month.
Even Attorney General William Barr, who served under Presidents Trump and George H.W. Bush, stated in his 2022 book that it was a “disgrace” that the 9/11 perpetrators had not been tried more than two decades after the attack.
“The military can’t seem to get out of its way and complete the trial,” Barr wrote, calling the commissions a “hopeless mess” and stating that he had even attempted to bring the Guantanamo detainees to America for trial in federal court in 2019 but was met with Republican opposition in Congress. Trump wants to keep Guantanamo open and described the federal court system (where he is now a criminal defendant) as a “joke” and a “laughingstock” for convicted terrorists. However, according to Barr, a 2019 internal analysis by Trump administration officials at the Justice Department decided that they would “likely succeed in obtaining a conviction” in federal court.
“A stopped clock is right twice a day,” Holder stated when questioned about Barr’s shift on the matter.
During the Trump administration, the Justice Department obtained convictions against foreign terrorists in federal court, with Barr opting not to seek the death sentence against two former British citizens and Islamic State group militants known as the “Beatles.” Both men, Alexanda Amon Kotey and El Shafee Elsheikh were convicted and are now serving life terms in ADMAX in Florence, with other terrorists including Tsarnaev.
Republicans made statements on Thursday blaming Joe Biden’s administration for the plea agreement, even though the White House has stated that the decision was left to the Pentagon. Senate Republican Leader Mitch McConnell, R-Ky., who rejected the plea deal, said it demonstrated “weakness” in a statement that did not address Barr’s admission that federal trials, which he opposed, would have been a preferable road forward.
Sen. Chris Coons, D-Del., told NBC News that he did not “second guess” the prosecutors in the case and that there were structural issues with Guantanamo from the beginning.
“Look, the way that the Guantanamo detentions were set up from the very beginning made it difficult, if not impossible, for there to be a complete delivery of justice for the families of the victims of 9/11,” Mr. Coons said.
Sen. Richard Blumenthal, D-Conn., stated that he has “long advocated that our federal court system is perfectly capable of conducting this kind of trial” and is well-suited to dealing with major criminal cases.
“I’ve been trial lawyer long enough to know that hindsight is always 20/20,” he told reporters. “But one of the reasons I advocated for federal court involvement was that it could more accurately and fairly provide for punishment in this kind of case.”
Sen. Chris Van Hollen, D-Md., who has urged the Biden administration to close the Guantanamo detention facility, told NBC News that the debate over military commissions versus federal courts had occurred “a while ago,” but he was unsure whether a civilian trial would have resulted in a different outcome.
“I believe that we should have had the option,” he told me. “Whether that would have resulted in a different outcome is a separate question.”
Sen. Thom Tillis, R-N.C., said it’s easy to question prosecutors actions in retrospect, but he’s fine with a compromise that would keep Mohammed and his co-defendants incarcerated for life.
“The guy’s been in prison for two decades. He’ll be in jail for the rest of his life. Tillis added, “I’m not going to sweat the details.” “There’s no clearer vision than the vision of hindsight.”
It’s unclear what a plea deal means for the future of Guantanamo Bay’s detention facilities. Former President Barack Obama said in his final hours in the White House in 2017 that history would judge Congress for not closing Guantanamo, saying politicians had “placed politics above the ongoing costs to taxpayers, our relationships with our allies, and the threat posed to U.S. national security by leaving open a facility that governments around the world condemn and which hinders rather than helps our fight against terrorism.”
Former Secretary of State Hillary Clinton wrote a document in 2013 stating that shutting Guantanamo was necessary to “signal to our old and emerging allies alike that we remain serious about turning the page on GTMO and the practices of the prior decade.”
During the Biden administration, officials made discreet steps to close Guantanamo, and the number of inmates fell to 30 last year from a high of roughly 800 following the 9/11 attacks.