FBI Disruptions Only Latest Flaw at Guantanamo 9/11 Hearings

This week at Guantanamo Bay, an FBI investigation into one or more defense teams has almost completely derailed the proceedings against the alleged mastermind of the 9/11 attacks and his co-conspirators. As I wrote about earlier this week, disruptions in Guantanamo commissions have become the norm, and U.S. federal courts (which handle terrorism cases regularly) are looking better and better by comparison. In the meantime, the public and victims watch as the case limps towards a still uncertain trial start date.

After it was revealed that the FBI visited a defense team’s security officer and asked him to inform on one or more of the other defense teams, all the other scheduled court business on the docket was pushed aside. Defense attorneys say that without more details of what the FBI is looking for and who they’re talking to, the attorneys cannot represent their clients without a conflict of interest. They have asked Judge Pohl to appoint independent counsel for the defendants and to order the FBI agents involved, the chief security officer, and a member of the prosecution team (who also works for the FBI) to testify in court about the investigation.

The prosecution has appointed an attorney specifically to handle any issues related to the FBI investigation. Judge Pohl has ordered independent counsel for two of the five defendants, and for all members of defense teams past and present to come clean on whether the FBI has approached them. When the commission reconvenes in June, we will see whether Judge Pohl decides to grant the defense’s request for testimony.

Even without FBI-related interruptions, the commission’s flaws still hamper the proceedings. The court continues to deal with issues as basic as what materials can be passed between defendants and their attorneys. Under the restrictive and unclear guidelines, for what materials defense attorneys can share with their clients, even the defendants’ own writings, once given to their attorneys, cannot be passed back to the detainees. Judge Pohl clarified today that these materials can in fact be given back to the detainees.

All of this seems almost comical – the Keystone Kops-ish fumbling of the FBI, the uncertainty of even the most basic issues of representation – until you remember that the hearings are about real life crimes, with thousands of real life victims, whose family members watch these absurd developments in horror and chagrin.

Brigadier General Mark Martins, the chief prosecutor, now estimates that the 9/11 trial could start jury selection in January 2015. Defense attorneys are less optimistic. The various complications resulting from this FBI investigation will provide some delays, but the continuing and underlying systemic flaws and confusion in the military commissions will provide more. It’s unclear if, even when the trial finally starts, the Guantanamo military commissions will result in anything resembling justice.


Published on April 17, 2014


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