JUAN GONZALEZ: Attorney General Eric Holder is expected to announce today that five men accused of plotting the September 11, 2001 attacks, including alleged mastermind Khalid Sheikh Mohammed, will be tried in a criminal court in New York instead of a military commission. Mohammed and the four others will be transferred from Guantánamo to New York for the trial.

Attorney General Holder is also expected to announce that military commissions will be used to try others at Guantánamo, including Abd al-Rahim al-Nashiri, the accused mastermind of the 2000 attack on the USS Cole warship in Yemen. It is not clear where commission-bound detainees like al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.

AMY GOODMAN: The move marks one of the first major steps by the Obama administration to close the prison at Guantánamo.

During a news conference in Japan, President Obama said, quote, “I am absolutely convinced that Khalid Sheikh Mohammed will be subjected to the most exacting demands of justice.”

Meanwhile, White House counsel Gregory Craig, who struggled to lead the closure of Guantánamo, is expected to announce his resignation today.

To assess the future of Guantánamo and the more than 200 men still in detention there, we’re joined in the firehouse studio by British journalist and historian Andy Worthington. He’s the author of the book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. He’s just directed a documentary film with Polly Nash called Outside the Law: Stories from Guantánamo.

Welcome to Democracy Now!

ANDY WORTHINGTON: Hello. Very nice to be here.

AMY GOODMAN: So, as you fly in this morning and then make your way back across the Atlantic, this news comes down. At the time of this broadcast, Eric Holder is about to hold a news conference, the Attorney General, announcing Khalid Sheikh Mohammed and four others will be tried in a New York civilian court.

ANDY WORTHINGTON: Yes.

AMY GOODMAN: Your response?

ANDY WORTHINGTON: Well, I mean, this is what actually we’ve all been waiting for, to be honest. This was what it was all supposed to be about, was rounding up the people who had a connection to the 9/11 attacks. And, of course, what we’ve actually had over the years is eight years of a prison outside the law holding nearly 800 people, most of whom had nothing to do with it, not to mention all the other prisons that have been used, the secret prisons, the whole CIA program. So, to that extent, it’s good news.

I’m rather disturbed to hear that the second tier of justice, which is the military commission system, has been — we’re apparently going to hear that that’s where one of the men, Abd al-Rahim al-Nashiri, is going to be prosecuted, because the administration and the Senate have tinkered with the military commissions, which were essentially revived as the terror trials by Dick Cheney in November 2001. They were once ruled illegal by the Supreme Court. Congress brought them back. They failed spectacularly throughout their history to demonstrate that they were a viable form of justice. And even with these latest amendments, they still fall short of the standards that we would expect from trials and the standards that we would expect from federal court. So it’s rather disturbing to hear that these two layers of justice are still planned.

JUAN GONZALEZ: And in the case of the military commissions, many assigned counsel within the military have also criticized them and said that they are severely lacking in a due process situation.

ANDY WORTHINGTON: Well, absolutely. I mean, you know, actually, one of the kind of most heroic stories of the last eight years has been the way that military defense lawyers, and, in fact, some of the prosecution lawyers assigned to the military commission system, have — well, I think basically they told the President, “You think that I was appointed to this job to follow what you said, but actually, you know, I was assigned to this job to follow the Constitution. So I’m afraid, you know, we’re going to have to tackle you on the commissions.” And the military defense attorneys that I’ve spoken to recently are under no illusions that we suddenly have a new and valid system that works. So I really don’t understand it.

And, I mean, there is already a problem, which was identified by the administration in summer, and they told the Senate about this, that the charge of providing material support for terrorism is a charge that they think will be subject to appeal in the military commissions system. But the administration has also said they don’t have any problems with trying that in federal courts. So I’m really confused as to why they’re going ahead with it. And, you know, the overall impression it gives me is that they’re trying to rig the system. You know, they have a premier league trial system, and if they have doubts maybe that that’s going to work, then they’ve got this reserve system. And that’s not the way that justice should work, and especially not after the horrors of the last eight years.

AMY GOODMAN: And the significance, Andy Worthington, of trying them in New York in a civilian court, just blocks from Ground Zero, the professed mastermind of the attacks, Khalid Sheikh Mohammed? And what do you think of that description of him, as everyone calls him, the self-confessed or professed mastermind?

ANDY WORTHINGTON: Well, I think — you know, I think it’s very appropriate that it does take place here. And, I mean, I’m also glad because we’ve had all this, you know, terrible talk all year from people about “We can’t bring these people to the US mainland. You know, our prisons” — which are the safest in the world — “we can’t hold them,” all this. And in fact, you know, I mean, I think a lot of people don’t realize that one man was already transferred here in the spring, Ahmed Khalfan Ghailani, who’s the suspect in the 1998 African embassy bombings and is awaiting trial. So, you know, we’ve finally solidified that side of things of getting the trials going. And, of course, I think New York is very appropriate.

And with Khalid Sheikh Mohammed, you know, we do have this evidence that he confessed to his involvement in the 9/11 attacks before he ever ended up in US custody. So the sad thing, really, is, with that, why did all this have to happen? Why, when this man was seized in March 2003, was he not brought to the United States to face a trial at that time, without, you know, these long years of torture?

JUAN GONZALEZ: What do you make of the expected resignation of Gregory Craig, who was basically charged with that first announcement of President Obama, that he was going to close Guantánamo within a year, and now, less than a year, he is resigning his job? What do you make of it?

ANDY WORTHINGTON: Well, I don’t know. I mean, there was a time a couple of months back, when there seemed to be stories in the mainstream media that, you know, he had been sidelined, he had been kind of blamed for a lot of the things that had happened. So I don’t know whether he’s particularly been pushed. It looks that way.

I mean, at the time that everybody was blaming him for rushing into it, I actually thought that Defense Secretary Bob Gates made a good point, you know, when he said we had to set a timeline. If you don’t, you know, these things just go on forever. But I was disappointed that the administration kind of backed off from supporting this.

And, you know, it all kind of went — it was his idea, you know, when criticism came, because, you know, the simple truth is, it was never going to be that easy to close Guantánamo. And, in fact, the problems that have happened throughout the year, I don’t think were his fault. I think they were the fault of other officials in the administration.

AMY GOODMAN: And now he will be replaced by Bob Bauer, Obama’s personal attorney, who’s married to Anita Dunn, who is the White House communications director, who’s just announced she’s stepping down.

ANDY WORTHINGTON: OK.

AMY GOODMAN: Andy Worthington, now about the others. The Washington Post says administration officials say they expect up to forty of the prisoners at Guantánamo will ultimately be tried in either federal court or military commissions, possibly including federal courts in DC, in Alexandria. Approximately ninety others have been cleared for repatriation or resettlement in a third country. That leaves up to seventy-five people remaining at Guantánamo who could continue to be held under laws of war, because they’re deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material. What happens to these seventy-five people?

ANDY WORTHINGTON: Well, I don’t know. I mean, that’s not a particularly great analysis of why you have a reason to hold people, is it? It’s hedged in with all kinds of problems about what the supposed evidence is against them. I don’t know.

I’m surprised there’s no mention there of the habeas corpus petitions, because, you know, this has been an important, very crucial part of the story this year, is that when the men finally secured the right to habeas corpus. And, you know, the Supreme Court last June gave them those rights and made them constitutionally guaranteed, so that lawmakers couldn’t interfere, as they had before. We’ve had thirty-eight cases decided by judges, and in thirty of those cases the judges have said, you know, that the government has failed to provide the evidence used to justify holding these men. Now, that leaves eight people who have — the judges have said, you know, “By a preponderance of the evidence, you have demonstrated that these people had a connection to al-Qaeda and the Taliban, and you can continue to hold them.” So, all these people have habeas petitions that are ongoing. And, you know, the administration has to, I think, let this process carry on. And it will result, I have no doubt, in some of these — was it seventy-five? — being cleared.

AMY GOODMAN: Let’s turn to an excerpt from your new film, Outside the Law: Stories from Guantánamo. This is Omar Deghayes, a Libyan British resident who was freed from Guantánamo in December of 2007.

OMAR DEGHAYES: The interrogator said to us, “You will be released one day, yes. You will be released, I’ll tell you that. You will be released. But you will not be released from this place until you are broken wrecks. We will release you. You are terrorists. And we will release you, yes. But you will be physically finished, psychologically finished, and you will be nothing.”


The last time I saw my son was when they abducted us in Lahore, and he was six month years old, I think. Very young. Now he’s seven years old. I haven’t seen him since. I think it is the biggest loss I can, the biggest loss I have lost in Guantánamo, really. Not my eye, not my broken finger, not my broken ribs, not my broken nose, not the humiliation, not the sexual abuse, not all that transport and things. All these are bad enough, but the worst, I think, thing that can — that did happen, I lost there, is not the eye; it’s those years of seeing Suleiman growing up.

AMY GOODMAN: And here’s another clip from the film, featuring British lawyers Gareth Peirce and Clive Stafford Smith.

CLIVE STAFFORD SMITH: They will close Guantánamo, but so what? That’s not the end of the story, because there are many, many thousands of prisoners held in US secret custody around the world. Guantánamo is the tiniest tip of the iceberg of that.


GARETH PEIRCE: Bagram Air Base in Afghanistan is being reinforced, rebuilt, has now far more prisoners than Guantánamo had.

AMY GOODMAN: Outside the Law: Stories from Guantánamo. Your final comment, Andy Worthington?

ANDY WORTHINGTON: Well, you know, thanks for showing that clip. I mean, this was a project that really is related to the work I’ve been doing for the last four years, my book, The Guantánamo Files, to tell the stories of the men in Guantánamo, to bring those stories to light, to demonstrate that they were human beings, and crucially, to demonstrate that in so many cases, the majority of cases, these men had no involvement with terrorism.

So, on one hand, today we’ve got the news that the people genuinely accused of terrorism are going to face a trial. But there are still a significant number of men held in Guantánamo who, you know, were not involved in terrorism at all, and I haven’t seen yet a clear answer as to how this is all going to be resolved.

AMY GOODMAN: Well, we want to thank you very much for being with us. Congratulations on your new film, Andy Worthington, British journalist and historian. The book, The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. The documentary film, now just out, Outside the Law: Stories from Guantánamo.