The 9/11 Case: Some Progress but Still No Start in Sight

Last week I spent five days observing the Guantanamo Bay military commission pretrial hearings in the case against the alleged architect of the 9/11 attacks Khalid Sheikh Mohammed (KSM) and his four co-accused.

Proceedings began at 9 am on Memorial Day, with a small gallery of observers looking on at the courtroom from behind three panels of soundproof glass. The hearings were broadcast on screens above us on a 40 second delay. If Judge James Pohl or the security officer sensed classified information was about to be discussed, either could press a button and the feed to the gallery would be cut. This happened twice on Thursday when another Guantanamo detainee Hassan Guleed Dourad testified and began giving details on the layout of Camp 7, where the 15 remaining “high-value detainees” are kept.

Those in the gallery included some 9/11 victim family members, reporters, military commissions staff, defense team members, and service members deployed to Guantanamo who are able to view proceedings on a “space available” basis. I was one of ten non-governmental organization (NGO) observers this week out of a maximum of 12. Our group included a district attorney, civil rights lawyer, retired military prosecutor, and the aunt of a 9/11 victim who lost her nephew in one of the twin towers. She was observing as a representative of the group 9/11 Families for Peaceful Tomorrows, which recently gained observer status. Otherwise, her relationship to the victim would be considered too remote to entitle her to visit Guantanamo as a family member.

Only on Monday and Thursday did all five defendants attend the hearings, each sitting with their defense teams, at the ends of five long tables. Three came on Tuesday, none on Wednesday, and two on Friday. There is a raised platform with around 12 empty chairs against the right wall of the courtroom, next to the prosecution. This is where the panel of military officers—akin to a jury—will sit when the trial finally begins. According to one defense team member, that is likely to be no earlier than November 2019. Another predicted the start date at “between 5 and 10 years” from now.

The 9/11 case has been in pretrial hearings since 2012. When President Obama came to office, he suspended all military commission trials and then-Attorney General Eric Holder indicted the 9/11 defendants in federal court. Had the case been tried there, it would likely long be over by now. But Congress extinguished that possibility in 2009, prohibiting all detainee transfers from Guantanamo to the United States for any reason, including trial. Before the ban, another “high-value” Guantanamo detainee Ahmed Ghailani was transferred stateside and later convicted and sentenced to life in prison for his role in the 1998 bombings of U.S. embassies in Kenya and Tanzania.

As far as Guantanamo hearing weeks have gone, this one covered a lot of ground. Issues covered included defendant Walid bin Attash’s earlier request to disqualify two of his lawyers, the prosecution’s failure to provide certain confidential information to several defense team members, and the defense request for a phone line between their clients at Guantanamo and offices in the United States. Defense teams also argued for the United Nations Special Rapporteur on Torture to have access to Camp 7, sought additional information on the CIA’s spying on attorney-client meetings (discovered in 2013), and requested an expert to examine the potentially cancerous contaminants found in the soil at Camp Justice where the courtroom is located (and where NGO observers stay in tents, about 10 minutes’ walk away).

A curtain in the gallery between victim family members and other observers was pulled shut Tuesday when prosecutors sought an order to take 10 witness depositions from close family members of 9/11 victims in open court in October. The defense argued the depositions should be recorded in private as they would be unduly prejudicial, saying such “victim impact statements” were relevant at the sentencing phase, not the guilt phase of a trial. Jim Harrington, lead counsel for Ramzi bin al-Shibh, remarked that the timing of the proposed depositions, with a presidential election weeks away, was “just incredible.”

Detainee Guleed Hassan Dourad testified on Thursday morning in support of bin al-Shibh’s allegations of sounds and vibrations emanating from his cell at night, preventing him from sleeping. “We have mental torture in the Camp 7,” said Dourad, continuing: “In the black site there was physical—” before Pohl cut him off for wading into classified territory. Dourad has been in Guantanamo since 2006. According to his Joint Task Guantanamo (JTF-GTMO) assessment, he was captured in March 2004 and handed over to the United States “on an unknown date.” Dourad has never been charged with a crime or provided with a lawyer.

Abu Zubaydah, the first detainee subjected to the CIA’s so-called “enhanced interrogation” program, was also due to testify on bin al-Shibh’s claims in the witness stand. However, following the prosecution’s cross examination of Dourad, which included the questions “Are you a member of al Qaeda?” and “Is America your enemy?” Zubaydah’s Navy lawyer Commander Patrick Flor said he would object to this line of questioning for Zubaydah on the grounds of the detainee’s right against self-incrimination.

With Zubaydah’s entire testimony at risk of being struck from the record, Harrington decided against calling the witness, saying he would seek to obtain “use immunity” for Zubaydah’s testimony, so it could not be used against him in any future criminal prosecution. This request may be argued in the next set of hearings, scheduled for July, where the court may also hear KSM’s motion for Judge Pohl and the prosecution to recuse themselves from the case for allegedly secretly destroying evidence.

Chief Defense Counsel Brigadier General John Baker said he expected the focus of the 9/11 hearings for the “next period of time” to be on discovery of classified information, a process he said was “in its infancy.” Despite defense lawyers declaring a couple of times at the hearings that “peace has broken out” with the prosecution team, Baker said that there were few instances of the parties coming together to resolve matters outside the courtroom: “The way the litigation has unfolded, there’s virtually no getting together and working it out.”

The week ended with a press conference, where lawyers for bin al-Shibh and Amar al-Baluchi and Chief Prosecutor Brigadier General Mark Martins answered questions from six reporters at Guantanamo and some reporters viewing the hearings from the Fort Meade Army Base in Maryland, the only location in the United States where the public can watch Guantanamo proceedings. Several victim family members also spoke eloquently and heartbreakingly of their loss and experiences throughout the week.

With last week’s hearings coming to a close, the Senate is now set to debate the Guantanamo transfer restrictions in the annual National Defense Authorization Act (NDAA). This year’s bill continues the ban on transfers to the United States, leaving little chance any detainees will be tried in U.S. federal court, despite its far superior record of speedily obtaining convictions for terrorism offenses than the Guantanamo military commissions, where four of the eight detainees convicted have had their convictions overturned.

National security leaders including CIA Director John Brennan and former Director of National Intelligence Admiral Dennis Blair have declared the need to close Guantanamo as a matter of national security. Three dozen of the nation’s most respected retired military leaders recently urged Congress “to come together and find a path to finally shutter the detention facility.” And the experts I spoke to all believed that even if the 9/11 trial was moved to federal court now, it would still be over sooner than if it kept going in the military commissions. Yet the prison remains open and the beleaguered military commissions limp along, nearly 15 years after 9/11, with no trial start date—let alone end—in sight.


Published on June 6, 2016


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