It is now almost 3,000 days since Khalid Sheikh Mohammed was arrested in Pakistan and handed over to US custody. From day one the USA had a fully functioning criminal justice system, with independent federal courts, well-resourced, competent and experienced in conducting complex trials, including in terrorism cases.
In the years since the attacks of 11 September 2001, said US Attorney General Eric Holder in November 2009, the USA has had “no higher priority than bringing those who planned and plotted the attacks to justice”. For the US government, however, this has clearly not been the case, either under the previous administration or the current one.
Three days after Khalid Sheikh Mohammed was arrested on 1 March 2003, then US Attorney General John Ashcroft described him as “the al-Qa’ida mastermind of the September 11th attacks”.Yet he was not brought to a prompt and public trial, but hidden away in secret detention at undisclosed locations for the next three and a half years. According to Attorney General Ashcroft, the arrest of Khalid Sheikh Mohammed was “first and foremost an intelligence opportunity”. This explanation, however, merely masked the reality that the Bush administration consciously chose to torture and subject to enforced disappearance this and other detainees accused of involvement in the 11 September or other attacks rather than to bring them to justice for the grave crimes of which they were accused. In so doing, it violated its obligations under international law, and betrayed the principles of human rights and rule of law it had previously professed to the world.
What about the current administration, which has now been in office for over two years? In November 2009 Attorney General Holder announced that Khalid Sheikh Mohammed and four other “alleged 9/11 conspirators” being held in the US Naval Base at Guantánamo Bay in Cuba after being transferred there from secret CIA custody in 2006 would be brought to the mainland to stand trial in ordinary federal court “before an impartial jury under long-established rules and procedures." The following week, he told the Senate Judiciary Committee that “for eight years, justice has been delayed for the victims of the 9/11 attacks”. “No more delays”, he added. “It is time, it is past time, to act.”