What Happens If a 9/11 Terrorist Defendant is Found Not Guilty?

"I am absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice," President Obama said in Tokyo. "The American people will insist on it and my administration will insist on it."

But what happens if KSM or any of the other 9/11 defendants the Obama administration is bringing to New York for criminal prosecutions -- including Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi -- are somehow found not guilty?

Attorney General Eric Holder brushed off the question, saying, "I would not have authorized the bringing of these prosecutions unless I thought that the outcome -- in the outcome we would ultimately be successful. I will say that I have access to information that has not been publicly released that gives me great confidence that we will be successful in the prosecution of these cases in federal court."

Not everyone is so confident, of course. KSM, for instance, was subjected to "enhanced interrogation techniques" that many consider torture. This includes being waterboarded 183 times in a one month. Could this undermine the case against him?

Fears of giving KSM the rights afforded defendants in a criminal case have led some to conclude that a military tribunal might be a better venue for him.

In September 2006, debating the Military Commissions Act, then-Sen. Obama said KSM and those like him would get "basically a full military trial with all the bells and whistles. He's going to have counsel, he's going to be able to present evidence, he's going to be able to rebut the government's case. Because the feeling is that he's guilty of a war crime and to do otherwise might violate some of our agreements under the Geneva Conventions."

"I think that's good that we're going to provide him with some procedure and process," then-Sen. Obama said. "I think we will convict him and I think he will be brought to justice. I think justice will be carried out in his case."

But when Holder announced on Friday that five defendants would face military tribunals, KSM was not among them.

In June, Ahmed Khalfan Ghailani, a Tanzanian national, was brought to the Metropolitan Correctional Center to face 286 separate criminal charges stemming from his alleged role in the Aug. 7, 1998 bombing of the U.S. Embassies in Dar es Salaam, Tanzania and Nairobi, Kenya, including conspiring with Osama bin Laden and al-Qaeda to kill Americans, and a separate charges of murder for each of the 224 people killed embassy bombings.

We asked White House press secretary Robert Gibbs what would happen if Ghailani is found not guilty?

Gibbs wouldn't bite but the question is important. If he will be freed, that prompts questions of national security and whether civilian courts are as appropriate as other venues for such trials. If he won't be freed despite being found not guilty that undermines the credibility of the trial.

"We will talk about what happens about a verdict when a verdict comes," Gibbs said.

The following day, the Senate Minority Leader Sen. Mitch McConnell, R-Kentucky, asked “if we’re going to treat this terrorist detainee as a common civilian criminal, what will happen to Ghailani if he’s found not guilty? And what will happen to other detainees the administration wants to try in civilian courts if they are found not guilty? Will they be released? If so, where? In New York? In American communities? Or will they be released overseas, where they could return to terror and target American soldiers or innocent civilians?”

McConnell continued: “If Ghailani isn’t allowed to go free, will he be detained by the government? If so, where will he be detained? Would the administration detain him on U.S. soil, despite the objections of Congress and the American people?”

McConnell said the questions about Ghailani resemble the questions about Guantanamo in general.

“On the question of Guantanamo, it became increasingly clear over time that the administration announced its plan to close the facility before it actually had a plan,” he said. “If the administration has a plan for holding Ghailani if he’s found not guilty, then it needs to share that plan with the Congress. These kinds of questions are not insignificant. They involve the safety of the American people.”

-jpt