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Analysts: Why 9/11 planners won't face trial

CNN legal analyst Jeffrey Toobin



Khalid Shaikh Mohammed
Jeffrey Toobin
Peter Bergen

(CNN) -- With Zacarais Moussaoui headed for lifetime confinement at a federal prison for a minor role in the 9/11 attacks, the question arises of what will happen to the alleged planners who are in U.S. custody.

CNN legal analyst Jeffrey Toobin, terrorism analyst Peter Bergen and anchor Anderson Cooper discussed the fates of Khalid Shaikh Mohammed and Ramzi Binalshibh -- alleged planners of the 9/11 attacks -- on "Anderson Cooper 360" Wednesday night.

TOOBIN: I think the defense argument, that (Moussaoui) was a small fry, that this was a wanna-be, that this was a crazy guy, whose importance was being inflated by the government, persuaded at least one juror that this was not a death-penalty case.

We don't know what the split was. But we do know that it was not unanimous for the death penalty.

Peter, is this guy just a small fry?

BERGEN: No doubt.

I mean, some of the testimony we heard in the case -- well, it wasn't testimony. It was summary interrogations of some of the al Qaeda leadership that is in American custody. And they were talking about, this is a guy they wanted to cut loose, somebody who was a pain, ... they didn't appreciate the fact that he didn't behave in a very rational manner. And they kind of cut him out of the plot.

COOPER: So, as -- you mean, as a terrorist, he's kind of a loser?

BERGEN: Completely.

COOPER: Why is that? I mean, how can you be a bad terrorist? What, he's just a loose cannon?

BERGEN: Well, you know, al Qaeda's leadership is a fairly rational group of people, and they don't want people on the team who have got personality problems.

You know, the jury did not find, in the mitigating factors, that Zacarias Moussaoui is actually psychotic. But, clearly, his behavior during the trial, the way he behaves with anybody he deals with, indicates that you wouldn't -- you wouldn't want him on your team, running whether you're running a business or a terrorist organization.

TOOBIN: And -- Anderson, he may have wanted to be a terrorist, but the government couldn't point to any terrorism that he did. This is a guy who was in prison as of the middle of August 2001. He got caught before he could even attempt to do anything.

So, the argument that he was dangerous and wanted to do something was all theoretical. They couldn't point to anything he actually did.

COOPER: Peter, you talk about this testimony that they did point to, testimony from other higher-level terrorists, who are in custody in undisclosed locations. Any chance that they are going to be brought to court?

BERGEN: Well, to me, the real tragedy here is that I think it's very unlikely that the people really responsible for 9/11, Khalid Shaikh Mohammed and Ramzi Binalshibh, who were the operational planners -- it was their idea, their execution -- they're in American custody, and I don't think they're ever going to see the inside of an American courtroom.

I think most Americans would be surprised by that. Why will they not be put inside -- why will they not see inside an American courtroom? Very possibly because they have been treated in such a way that their evidence would be inadmissible. The New York Times said that Khalid Shaikh Mohammed has been water-boarded, which is a technique that is somewhere between abuse and torture, where you make somebody put -- you put somebody's head into the water, and you make them think they're drowning.

I wonder what Jeff's opinion is here in terms of why they won't be inside an American courtroom.

COOPER: Yes, Jeff, I mean, will these guys just be sort of disappeared?

TOOBIN: I think they are going to be disappeared. I think they will never return to American soil, for just the reasons Peter was suggesting, that, you know, the -- the protections of civil liberties that are enshrined in our system are not something that have been honored in these cases.

And maybe they should not have been honored. Maybe the circumstances called for it. But ... the treatment is indefensible. The evidence was collected in a way that comported with military and intelligence procedures, but not with criminal justice procedures, and our government would prefer not to deal with them.

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