9/11 trial in New York faces huge hurdles

Dubai: Slightly more than 700 metres from where the war on terror began in Manhattan, its end game will play out when Khalid Shaikh Mohammad and four other Al Qaida operatives go on trial in a US Federal Court, accused in the greatest mass murder of civilians in modern peacetime history.

On Friday, Attorney General Eric Holden announced he would be seeking the death penalty against the five if a civilian court finds them guilty of masterminding the 9/11 attacks on the Pentagon, United Flight 93 and the twin towers of the World Trade Centre.

Twin towers

It's a 10-minute walk from where those towers tumbled, down Vesey Street, across Broadway to the Foley Square building where the five will be likely tried in at least a year's time. But US prosecutors face a far longer and arduous journey in their attempt to find justice.

"It's perhaps the biggest challenge in the history of federal law enforcement to produce a trial that is fair under these circumstances," explained Jeffrey Toobin, a former US assistant attorney, a jurisprudence expert and a CNN legal analyst.

"How do you pick a jury in a courthouse just a few blocks away from the World Trade Centre site that can be considered fair? Can you have a change of venue?" he said in a televised interview. "And the biggest issue of all is what happens if [Mohammad] is acquitted?"

Central to any defence is the nature of the evidence and the means in which it was collected. While Mohammad has stated publicly and confessed to officials that he planned the attacks, the confession would be inadmissible in a US court.

A 2005 memo from the US Justice Department, released by the Obama administration, details 183 incidences of waterboarding — simulated drowning — against Mohammad during his time in detention. President Obama has described waterboarding as "torture".

Even before any trial gets underway, New York authorities would face a logistical and security nightmare ensuring the five make it to prison, let alone court on a daily basis.

The accused would have to be held in tight isolated custody. And given the glare of the worldwide media, adverse publicity would be automatic grounds for appeal.