A bipartisan group of lawmakers introduced legislation Tuesday to prohibit the Department of Justice from prosecuting self-professed 9/11 mastermind Khalid Sheikh Mohammed and four other co-conspirators in federal court.
The bill, sponsored by Sen. Lindsey Graham (R-South Carolina), would restrict the Justice Department from using funds to pay for a trial within the U.S. court system. Graham and other lawmakers in want the alleged 9/11 perpetrators to be tried before controversial military commissions.
Last week, the Obama administration conceded to pressure from Republicans and Democrats and agreed to look for a new venue to hold the trial, which was originally intended to take place in a lower Manhattan.
Graham’s bill currently has 22 co-sponsors.
On Tuesday, Sen. Blanche Lincoln (D-Arkansas), who is facing a tough reelection bid this year, is one of three Democrats who support the measure.
“I have serious concerns about using the U.S. criminal justice system to try enemy combatants who are currently detained at Guantanamo Bay or who might be charged in the future with acts of international terrorism,” Lincoln said in a statement. “My primary concern is providing for the safety and security of our nation and its citizens and I believe conducting military tribunals is the most effective means to accomplish that goal in these cases.
“In my view, their alleged acts against our country warrant trying these individuals in military court. Trying these conspirators in civilian courts is giving them a public stage to advocate their cause. Carrying out these civilian trials also has the potential to compromise classified intelligence which could put our national security and the American people at great risk.”
The other two Democratic lawmakers who support the bill are Sen. Jim Webb (D-Virginia) and Sen. Mark Pryor (D-Kansas).
This is not the first time Graham has attempted to block the Justice Department from moving forward with its plans to prosecute Mohammed and his accomplices in federal court. Last November, Graham introduced a nearly identical amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act. But the provision was defeated by a vote of 54-45.
The bill he introduced Tuesday features the same co-sponsors that signed onto Senator Graham’s previous bill.
“Despite pressure from Congress and other sources, the Obama administration should stay the course and try the 9/11 suspects in federal courts, where they belong,” said Ben Wizner, staff attorney with the ACLU’s National Security Project. “The administration made the correct decision when it announced that the 9/11 suspects would be brought to justice in our federal courts, and reversing course due to political pressure would be a miscarriage of American justice.”
Graham’s legislation follows a report by the U.S. Justice Department that said in 2009, more defendants charged with terrorism violations were tried in federal court than in any year since 9/11. The report states that there are currently more than 300 international and domestic terrorists incarcerated in U.S. federal prisons.
“Our federal courts are more than capable of handling sensitive security issues while preserving American values and legal standards. On the other hand, even with recent improvements, the military commission system is designed to ensure convictions rather than fair trials, and still fails to ensure basic due process guaranteed by U.S. and international law,” Wizner added.
In a similar pushback against attempts to circumvent federal law in favor of the laws of war when dealing with suspected terrorists, Attorney General Eric Holder sent a lengthy letter to Sen. Mitch McConnell (R-KY) Wednesday stating:
“Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States.”
Holder’s letter arrived eight days after McConnell and several other senators sent a letter to Holder demanding to know why Umar Farouk Abdulmutallab was arrested and charged with federal crimes instead of being interrogated by the military. On Dec. 25, 2009 Abdulmutallab tried to ignite explosives hidden in his underwear Northwest Airlines Flight 253 descended near Detroit.
Graham also criticized the decision to try Abdulmutallab in civilian court, telling reporters that “this whole criminalization of the war is really going to make us weaker and less safe.”
Graham, a former Judge Advocate General, insisted that Abdulmutallab “should have been turned over to the military, questioned about his intelligence, what he knew about the enemy.”
According to Graham, the U.S. would benefit from a system that would allow the military to interrogate a suspect “without a lawyer intervening.” However, Graham admitted that Abdulmutallab is cooperating with the government and is offering information, but that in this case it is “blind luck.”
In Holder’s letter, he concluded that “removing the highly effective weapon,” the ability to try terrorists in federal court would be foolish. And “only by using all of our instruments of national power in concert can we be truly effective.”
“The criminal justice system has proven to be one of the most effective weapons available to our government for both incapacitating terrorists and collecting intelligence from them,” Holder wrote.
Joshua Durkin and Ray Stores are staff writers for the The Public Record.