Benghazi Trial Shows Weakness of Guantanamo Commissions

In June 2013, I sat with a dozen other people in a courtroom in Cuba watching a slow-motion train wreck. I was on the U.S. military in Guantanamo Bay for a set of pretrial hearings in the 9/11 military commission trial.

Nearly three years later, the trial has yet to begin. It’s been almost 15 years since the attacks, and almost 10 years since the accused arrived at Gitmo. But there’s still no start date in sight. The most routine procedural question or legal challenge derails the hearings repeatedly, often for months.

Meanwhile, terrorism trials proceed smoothly in U.S. federal court. The most recent example: accused Benghazi attack leader Ahmed Abu Khattala.

Khattala was captured in Libya and brought to the United States to stand trial in D.C. federal court for his alleged role in the attack on the U.S. embassy in Benghazi, Libya. He has been charged with a variety of offenses, from murder to destroying a U.S. facility to material support for terrorism.

The latest development in Khattala’s case is a motion to return him to Libya and to avoid the death penalty, because his lawyers say that he was illegally seized and interrogated by U.S. authorities. Khattala was arrested in Libya and then interrogated for 13 days on a U.S. Navy ship with no access to a lawyer before he was placed under arrest, read his Miranda rights, and brought to the United States. Last week, Judge Christopher R. Cooper denied Khattala’s motion.

It’s been less than a year, and this and other substantial motions have been argued and dealt with. Compared to the pace of Guantanamo military commissions, Khattala’s trial is practically moving at the speed of light.

This discrepancy stems from a few issues. The military commissions were implemented after 9/11 for the primary purpose of expediency, not justice. They’ve been revised twice, after the Supreme Court struck down the first iteration. The Court has not reviewed the latest version.

Since the commissions were cobbled together based on a mix of military and federal criminal law, there is no precedent for even the most basic legal questions, which must then be deliberated over for weeks or months, sometimes without any resolution. Federal courts, by contrast, have long-established procedures and decades of precedent from which to draw. Issues that cripple military commissions are easily addressed in federal court.

Federal courts are also more accessible than Gitmo. Getting to Guantanamo requires expensive military flights (reportedly costing $90,000 each way) to the remote island military base. Lawyers for the accused have to travel to the prison to meet with their clients. This not only limits how quickly court business can proceed, but also may hamper attorneys’ ability to adequately represent their clients, calling into question the potential for a just result from any Guantanamo military commission trial. But lawyers, legal teams, witnesses, observers, and victims’ family members all have easy access to U.S. federal courts.

Next week, Guantanamo military commissions will hold another round of pre-trial hearings in the case against the 9/11 conspirators. A dozen or so observers will take the military flight and sit in the court room, watching the case inch one tiny bit closer (or not) to trial amidst a fog of procedural confusion and delays. Meanwhile, in federal courtrooms across the country, terrorism trials, like that of Abu Khattala, sail through.


Published on February 10, 2016


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