James Comey and Jack Goldsmith, high-ranking Department of Justice officials under Bush, have an op-ed in the Washington Post defending Attorney General Eric Holder's decision to prosecute Khalid Sheikh Mohammed and four other detainees in federal criminal court instead of a military commission proceeding. The conclusion is fine:

But Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.

In reaching that correct assessment, however, there's a few statements I take issue with. They posit that Holder made the decision to keep the U.S.S. Cole detainees in a military proceeding not for the reasons he said (that the attack happened outside the U.S.) but because the case against them is weak and the chance of conviction is greater in a military commission trial. In other words, Holder forum-shopped (as, they say, Bush's DOJ did before him) and there's nothing wrong with that. I think when it's done hoping to skirt the requirement of proof beyond a reasonable doubt because you know you can't meet it, there's definitely something wrong with it.
[More...]

Today, many of us are only familiar with Khalid Sheik Mohammed or Ramzi Binashibh, who have garnered the most press. Months from now, those of us who follow these cases will know the histories of all five 9/11 defendants like the back of our hands. Here's a helpful primer of links for those who want to get a head start.

Short Profiles of the Soon to Be 9/11 Defendants:

• Human Rights First
• the Guardian

Individually, With Lots of Links

• Khalid Sheikh Mohammed
• Ramzi Binalshibh,
• Walid Muhammad Salih Mubarak Bin ‘Attash,
• Ali Abdul Aziz Ali and
• Mustafa Ahmed Adam al Hawsawi.

More....

While Republicans (and Democrats like Jim Webb) quake in their boots all over the Red States, the Mayor of New York City, where, you might remember, the 9/11 attacks struck, says:

I support the Obama Administration’s decision to prosecute 9/11 terrorists here in New York. It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered. We have hosted terrorism trials before, including the trial of Omar Abdel-Rahman, the mastermind of the 1993 World Trade Center bombing.

New Yorkers are not afraid. Apparently, Virginians like Jim Webb are scared senseless.

Speaking for me only

(Omar Khadr when captured and today, via the Toronto Star)

The Supreme Court in Canada held oral arguments today in the case of Canadian child soldier Omar Khadr. According to Attorney General Eric Holder's statements today, Khadr will be among those tried by military commission.

Holder also revealed that Canadian detainee Omar Khadr will be prosecuted before a U.S. military tribunal – but the attorney general indicated the U.S. government will remain open to the possibility returning detainee Omar Khadr to Canada, depending on the outcome of a Supreme Court hearing underway today in Ottawa.

Explanations are in order:

Khalid Shaikh Mohammed, the self-described mastermind of the terrorist attacks of Sept. 11, 2001, and four other men accused in the plot will be prosecuted in federal court in New York City, the United States attorney general announced Friday. But the administration will prosecute another set of high-profile detainees now being held at the military prison at Guantánamo Bay, Cuba — Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the Navy destroyer Cole in Yemen, and four other detainees — before a military commission.

Khalid Sheikh Mohammed was tortured by the United States. And yet he can be tried in civilian court. Why then can we not try all of the Gitmo detainees in federal court? No logic is provided to explain the different treatment these detainees are receiving. See also Glenn Greenwald making a similar point.

Speaking for me only

President Obama signed the National Defense Authorization Act (NDAA)into law today. While it contains improvements to trial by military commission, the procedures are still flawed and should have been scrapped in favor of federal criminal trials. From the ACLU:

The NDAA makes improvements to the military commissions but fails to bring those tribunals in line with the U.S. Constitution and international law under the Geneva Conventions. It continues to apply the military commissions to a much broader group of individuals than should be tried before them under the Constitution and the Geneva Conventions and does not prohibit military commission trials of children. The new law does, however, for the first time require experienced capital defense attorneys in death penalty cases, authorize more resources for defense counsel, impose new limitations on the use of hearsay and coerced testimony and afford greater access to witnesses and evidence for defendants.

The ACLU firmly believes that the military commissions should be shut down for good as they remain a second class system of justice that cannot shed the shameful legacy of Guantánamo and all it stands for, rendering their results open to question.

The Center for Constitutional Rights issued an even stronger critique: [More...]

A preliminary hearing was scheduled tomorrow for Mohammed Zazi, father of Najibullah Zazi. The Grand Jury returned an Indictment against him today, which means there won't be a prelim. Fed. R. Crim. P. 5.1(a)(2) provides that a defendant=s right to a preliminary hearing does not apply in a case where the defendant is charged by indictment.

The Indictment charges Zazi with one count of making a false statement to the FBI on September 16, 2009:

...defendant ZAZI denied that he spoke with anyone by telephone regarding whether Najibullah Zazi was in any trouble, when, in fact, on or about September 11, 2009, defendant ZAZI did speak by telephone with a person regarding whether Najibullah Zazi was in any trouble.

[More...]

According to reporter Cara DeGette, Michael Dowling, co-counsel for terror suspect Najibullah Zazi, has applied to the Court to have the federal government pick up the cost of expenses related with the case.

The legal team has applied for federal funding to defray what will likely be a costly defense he said.

I'm not surprised. As I wrote here,

Aside from legal fees, ....who will help Folsom pay the cost of experts needed to assist the defense? Handwriting computer, fingerprint, explosive and terrorism experts will be required, at a minimum. Most lawyers would also use a jury selection expert. Zazi's father has the public defender, so his family isn't footing the bill.

[More...]

Former Guantanamo detainee Ahmed Ghailani, who was transferred to New York for trial on conspiracy charges involving the 1998 bombings of U.S. Embassies in Kenya and Tanzania, won't face the death penalty. Attorney General Eric Holder released the following statement through a DOJ spokesman yesterday:

“Ahmed Ghailani is on trial for the murder of 224 people, and we are committed to bringing him to justice for his alleged crimes. Other defendants in the embassy bombings case have either already received life sentences or will not be subject to the death penalty because the United States agreed not to seek it as a condition of their extradition. Given those circumstances and other factors in this case, the attorney general authorized the U.S. attorney to seek a life sentence.”

[More...]

Mohammed Zazi, father of Najibullah Zazi, remains on bond in Colorado where he is charged with lying to federal agents about conversations he had with Iman Ahmad Wais Afzali of Queens, NY. (Complaint here.)

The grand jury in Colorado hasn't met yet, and until they do, Zazi is entitled to a preliminary hearing. It was set for October 9, but on September 21, the Government filed a notice that it intends to use information against Zazi that was obtained by FISA wiretaps and electronic and physical searches.

Zazi's federal public defender, Ed Harris, filed a motion Friday seeking disclosure of major categories of information. If the matters are sensitive to national security, he is requesting the Judge review them. He's also asking that the preliminary hearing set for Oct. 9 be transferred from the Magistrate Judge to the District Court Judge. [More...]

Najibullah Zazi pleaded not guilty today to a charge of conspiring to use weapons of mass destruction. He will be detained pending trial. The Court declared the case complex, taking it outside of speedy trial limits. The next hearing is December 3, 2009.

Zazi's lawyer, Michael Dowling of Denver, who is licensed to practice in New York state and federal courts, told the media after the hearing (video here)that he hasn't seen any evidence that Zazi conspired with anyone else to commit an unlawful act. He said that traveling to Pakistan and buying products which contain chemicals that allegedly could be used to make explosives do not establish a conspiracy. He said while he hasn't seen all of the Government's evidence, he hasn't seen anything identifying any individuals with whom Zazi allegedly conspired. [More...]

Najibullah Zazi, who was ordered detained pending trial in NY and flown to NY today, will be housed in solitary confinement in a maximum security wing at the Metropolitan Detention Center in Brooklyn.

His lawyer, Arthur Folsom, who has never defended a client in federal court and who allowed him to be questioned for 23 hours by the FBI last week, told the Court in Denver today that he and another Colorado lawyer (who practiced in New York more than 20 years ago) will continue to represent Zazi in the NY case -- the case in which he is charged with a terrorism offense carrying a potential life penalty. The Magistrate Judge in Colorado confirmed this with Zazi, asking him whether he wanted a public defender to be appointed in NY. Zazi declined, stating he intended to keep his present counsel.

So Arthur Folsom and his new co-counsel will be traveling back and forth to NY to represent Zazi. (Only the co-counsel will appear Tuesday, presumably because it will take longer than that for Folsom to submit all the paperwork to get admitted to practice in federal court in NY or even admitted pro hac vice.) [More...]