Canadian Omar Khadr, the last westerner left in Guantanamo Bay, will face trial by military tribunal unlike the high-profile Sept 11, 2001, attacks plotters who will be brought to New York for trial in a civilian courts where they have far greater rights and protections, U.S. officials announced Friday.
Mr. Khadr's lawyer Barry Coburn, accused the administration of resorting to Bush-era injustice.
"We thought that the incoming Obama administration signalled a new day with respect to these cases, a new respect for civil liberties, an abhorrence of torture, a respect for the time-honored legal procedures and protections that are mandated by the Constitution and enforced by the federal courts," he said.
Instead and despite the president's promises it has failed "to make these fundamental protections available to Omar Khadr, who was fifteen years old when he was detained in Afghanistan as a child soldier and has been locked away in Guantanamo ever since, is, quite frankly, devastating and shocking to me personally.
"I had thought this administration was better than that."
In a separate, Canadian, case, being argued today before the Supreme Court in Ottawa, the Harper government is fighting a lower court ruling ordering it to try and bring Mr. Khadr. Every other western ally has insisted its citizens be returned from the Caribbean gulag at Guantanamo, created originally by the Bush administration to keep terrorist suspects out of the reach and protections of U.S. law.
During Friday's Supreme Court hearing in Ottawa, federal lawyer Robert Frater argued that the courts have no greater right to order Mr. Khadr be returned to Canada than they have to order the recall of Canada's' ambassador to Washington to protest his detention.
Mr. Frater said that the government alone has the right to decide whether or not to request Mr. Khadr's repatriation from Guantanamo Bay without interference from the courts.
"We are in the realm of diplomacy here," Mr. Frater told the country's top court. "The government has the right to decide what requests should be made, how they should be made, and when they should be made. The courts are not in the best position to do that."
Meanwhile, self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four other high-profile Guantanamo Bay detainees will face trial in a civilian federal court.
Some other terrorist suspects, including Mr. Khadr, who is accused of killing a U.S. soldiers during a firefight in Afghanistan when he was only 15 in 2002, will be tried in military tribunals - the special courts created by the Bush administration and widely discredited because they admitted evidence that would be outlawed in civilian or normal military courts.
U.S. President Barack Obama, who promised on the second day of his presidency to close Guantanamo within a year, said Friday that he was ``absolutely convinced that Khalid Sheikh Mohammed will be subjected to the most exacting demands of justice." The American people insist on it, and my administration insists on it."
However the White House admits the prison camp on a leased naval base in Cuba won't be closed by the year's deadline in January.
It remains unknown whether the military tribunals will be held at Guantanamo or elsewhere.
Bringing such notorious suspects to U.S. soil to face trial is a key step in Mr. Obama's plan to close the terror suspect detention centre at Guantanamo Bay, Cuba. Mr. Obama initially planned to close the detention centre by Jan. 22, but the administration is no longer expected to meet that deadline.
It is also a major legal and political test of Mr. Obama's overall approach to terrorism. If the case suffers legal setbacks, the administration will face second-guessing from those who never wanted it in a civilian courtroom. And if lawmakers get upset about notorious terrorists being brought to their home regions, they may fight back against other parts of Mr. Obama's agenda.
The case may also force the court system to confront a host of difficult legal issues surrounding counter-terrorism programs begun after the 2001 attacks, including the harsh interrogation techniques once used on some of the suspects while in CIA custody. The most severe method - waterboarding, or simulated drowning - was used on Mohammed 183 times in 2003, before the practice was banned.
Mr. Holder also announced that a major suspect in the bombing of the U.S.S. Cole, Abd al-Rahim al-Nashiri, will face justice before a military commission, as will a handful of other detainees to be identified at the same announcement, the official said.
It was not immediately clear where commission-bound detainees like Mr. al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.
The attorney general has decided the case of the five Sept. 11 suspects should be handled by prosecutors working in the Southern District of New York, which has held a number of major terrorism trials in recent decades at a courthouse in lower Manhattan, just blocks from where the World Trade Center towers once stood.
Mr. Holder had been considering other possible trial locations, including Virginia, Washington, DC, and a different courthouse in New York City. Those districts could all end up conducting trials of other Guantanamo detainees sent to federal court later on.
The actual transfer of the detainees from Guantanamo to New York isn't expected to happen for many more weeks because formal charges have not been filed against most of them.
The attorney general's decision in these cases comes just before a Monday deadline for the government to decide how to proceed against 10 detainees facing military commissions.
After making the announcement at a Justice Department news conference that the Sept 11, plotters would be brought to New York, Mr. Holder declined to say whether the Obama administration would accept a Canadian government effort to repatriate Mr. Khadr.
"We will look at the Khadr matter,'' he said in response to a question about the Canadian Supreme Court hearing. "As that case proceeds we'll see how its unfolds.''
In the military system, the five Sept. 11 suspects had faced the death penalty, but the official would not say if the Justice Department would also seek capital punishment against the men once they are in the federal system.
The administration has already sent one Guantanamo detainee, Ahmed Ghailani, to New York to face trial, but chose not to seek death in that case.
At the last major trial of al-Qaeda suspects held at that courthouse in 2001, prosecutors did seek death for some of the defendants.
Mr. Mohammed already has an outstanding terror indictment against him in New York, for an unsuccessful plot called "Bojinka" to simultaneously take down multiple airliners over the Pacific Ocean in the 1990's.
Some members of Congress have fought any effort to bring Guantanamo Bay detainees to trial in the United States, saying it would be too dangerous for nearby civilians. The Obama administration has defended the planned trials, saying many terrorists have been safely tried, convicted, and imprisoned in the United States, including the 1993 World Trade Center bomber, Ramzi Yousef.
Mr. Mohammed and the four others - Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali - are accused of orchestrating the attacks that killed 2,973 people on Sept. 11, 2001.
Mr. Mohammed admitted to interrogators that he was the mastermind of the attacks - he allegedly proposed the concept to Osama bin Laden as early as 1996, obtained funding for the attacks from bin Laden, oversaw the operation and trained the hijackers in Afghanistan and Pakistan.
The charges against the others are:
• Mr. Bin Attash, a Yemeni, allegedly ran an al-Qaeda training camp in Logar, Afghanistan, where two of the 19 hijackers were trained. Mr. Bin Attash is believed to have been bin Laden's bodyguard. Authorities say bin Laden selected him as a hijacker, but he was prevented from participating when he was briefly detained in Yemen in early 2001.
• Mr. Binalshibh, a Yemeni, allegedly helped find flight schools for the hijackers, helped them enter the United States and assisted with financing the operation. He allegedly was selected to be a hijacker and made a "martyr video" in preparation for the operation, but was unable to get a U.S. visa. He also is believed to be a lead operative for a foiled plot to crash aircraft into London's Heathrow Airport.
• Ali allegedly helped nine of the hijackers travel to the United States and sent them $120,000 for expenses and flight training. He is believed to have served as a key lieutenant to Mohammed in Pakistan. He was born in Pakistan and raised in Kuwait.
• Mustafa Ahmad al-Hawsawi, a Saudi, allegedly helped the hijackers with money, western clothing, traveler's checks and credit cards. Mr. al-Hawsawi testified in the trial of Zacarias Moussaoui, saying he had seen Mr. Moussaoui at an al-Qaeda guesthouse in Kandahar, Afghanistan, in early 2001, but was never introduced to him or conducted operations with him.
With a report from Kirk Makin