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Fourteen years since the Sept. 11 attacks transformed the nation and launched two wars, the five men accused of masterminding the crime are still waiting for their trial to begin in Guantánamo Bay, Cuba.
Khalid Sheikh Mohammed and his four associates have been in U.S. custody for more than 10 years. But the latest in the military’s hapless effort to try them — which began in 2012 — has ground to a halt, as the judge, Col. James Pohl, addresses allegations that an FBI informant attempted to infiltrate one of the defendants’ legal teams. The court hasn’t been in session since last April when Pohl declared the proceedings suspended again after 30 minutes. Even if he solves this particular problem when the court reconvenes next month, dozens of other motions and complaints that have been on hold for a year and a half await him.
The handful of people who have been watching the excruciatingly slow case closely — journalists, family members of those killed on Sept. 11, attorneys — say they believe it will be years before a jury is selected and the trial actually begins. Some have given up hope that the five accused mass murderers will ever face justice.
“I don’t know if it’s going to happen in my lifetime,” said Rita Lasar, 83, whose brother died in the 9/11 attacks. Lasar formed an organization called Sept. 11 Families for Peaceful Tomorrows, which lobbied unsuccessfully for the accused plotters to be tried in the federal court system.
The Obama administration attempted to move the five men from Guantánamo to be tried in a federal court in Manhattan in 2009, before fierce political blowback led by a vocal faction of 9/11 families killed the plan. (The Bush administration began trying the five in a military tribunal, an approach that was slapped down by the Supreme Court.) Congress passed a law blocking all transfers of Guantánamo detainees to U.S. soil. Obama reformed the military commissions, to be more palatable to human rights critics, and restarted the proceedings there in May 2012.
Rita Lasar (Photo: Gordon Donovan/Yahoo News)
Those opposed to the move to federal court wanted swift military-style justice for the accused plotters in a tribunal that made it easier to get convictions and guard government secrets. But the result has been very different. The untested system is a “defense lawyer’s absolute dream,” according to David Remes, who represents several Guantánamo detainees. Attorneys are able to file motion after motion, delaying the start of the death penalty trial, in part because no one really knows what the rules are. In the meantime, the federal court system has successfully convicted terrorist after terrorist.
“There’s no question that if these cases were tried in federal court, they would have been over long, long ago,” Remes said.
But Jason Wright, a former attorney on Mohammed’s defense team before resigning last year, said that the ever-changing rules of the new court were not a bonus for him or his team.
“I think the biggest challenge is trying to litigate in an environment where the rules change constantly, where Kafka controls the design,” he said. “You’re told to follow rules that you’ve never been shown, especially the classification rules, and it’s just extraordinarily difficult.”
The commissions are carefully set up to guard government secrets. The court proceedings are shown to family members and observers via video feed on a 40-second delay. A court censor is able to cut the feed whenever classified information is shared out loud — triggering a large, red flashing light in the courtroom. In the early days of the proceedings, even just the word torture would trigger the flashing light, according to Carol Rosenberg, a Miami Herald reporter who has covered the proceedings since the beginning.
Now, the classification rules are loosening slightly. James Harrington, who defends accused plotter Ramzi bin al-Shibh, said that one small sign of progress in the proceedings is that the defense lawyers are signing a memorandum to finally grant them access to classified discovery materials from the prosecution. For years, the defense lawyers were not allowed access to materials that showed that their clients were tortured in CIA custody, even though several news agencies had reported that information publicly. The release of portions of the Senate Intelligence Committee’s “Torture Report” last year has given defense attorneys greater access to this material.
The prosecution, led by Brig. Gen. Mark Martins, said it will fight for convictions no matter how long it takes.
“We are committed to a sustainable justice under law, however long that takes,” a Defense Department spokesman said in a statement. “In the meantime, those who stand accused of crimes are detained securely, humanely and legitimately while facing specific charges.”
But time takes its toll. Rosenberg, the Miami Herald reporter, notes that few Americans seem to even realize this trial is taking place. Ten years ago, many news outlets predicted the Sept. 11 proceedings would be the “trial of the century.” Now, they barely register as a blip on the national consciousness, despite the country’s ongoing fixation with the events of Sept. 11 and their aftermath.
“It is disappointing that so many people don’t realize the Pentagon is trying to hold the Sept. 11 trial at Guantánamo and so don’t know about the fundamental issues that have bogged it down,” Rosenberg said in an email.
Colleen Kelly, another Sept. 11 family member who opposes military commissions, said she thinks having the trial far away in Cuba has given the proceedings an “out of sight, out of mind” quality.
“There’s no doubt in my mind that if this pretrial hearing was in midtown Manhattan, there would be more media coverage,” Kelly said.
That’s unlikely to happen any time soon, however. Congress shows no sign of wanting to change its law preventing the transfer of Guantánamo detainees to U.S. prisons or courts. And as long as the trial remains forgotten, there’s no pressure to change that.