The Curious Case of the 9/11 Pre-Trial Hearings

Pretrial hearings in the military commission case against the five men accused of plotting the 9/11 attacks have been dragging on at Guantanamo Bay since May 2012. Yesterday I was at the U.S. Army base in Fort Meade, Maryland—the only location in the United States where the public and press can observe the hearings via video link.

It’s an odd experience. Unlike press, who view the hearing in a separate area and can bring in laptops and cell phones, non-credentialed observers must put any electronic devices in a locker and watch the hearing from the base movie theater. To the left of the entrance, next to a poster for “Hotel Transylvania 2,” the Office of Military Commissions (OMC) put up a sign advising potential witnesses not to watch the hearing. To the right is a concessions stand and a Halloween pumpkin.

While yesterday’s session lasted only two hours (including a break of around 40 minutes), I saw more proceedings than when I visited Guantanamo last December. Then, both days of scheduled hearings were cancelled because of a potential conflict of interest between defendant Ramzi bin al Shibh and his lead defense attorney Jim Harrington. That arose because the FBI was secretly investigating Harrington and attempted to turn another member of bin al Shibh’s defense team into an informant.

Yesterday, nearly a year later, they were still hashing out the same issue. These “you can’t make this stuff up” scenarios are behind a lot of the delays in the 9/11 military commission. Last December, experts told me they expected the trial to start no earlier than 2018. Last week, there was talk of 2020.

Only around 10 other observers (mostly from the Pentagon or law firms, according to OMC staff) joined me in the dark, full-size movie theater. The screen showed either a lectern where several defense counsel and a prosecution lawyer took turns arguing their points, one of the five tables, each with a defendant and their team of lawyers, or the Judge, Army Colonel James Pohl.

Pohl’s attempts to suppress his frustration caused laughter in the theater. There were also laughs when Ammar al-Baluchi’s lawyer Jay Connell compared the FBI infiltration issue to his wife and best friend having an affair. Connell argued that despite the investigation being over, a conflict of interest issue still remained. Both scenarios would cause him to ask: What were they thinking? How did this happen? How can I trust you ever again? Judge Pohl added a fourth question: Do I want to stay married? Cue more laughter.

The judge ruled that despite these questions, the FBI investigation had closed, so no actual or potential conflict of interest remained. Judge Pohl said he would move on to the next issue, concerning discovery of documents, but he never made it there.

Instead, as with most of the hearings last week, the rest of the session was dominated by the question of whether another defendant, Walid bin Attash, could represent himself. Bin Attash, through a translator, said that he was ready to discuss the motion, requested a closed session to discuss privileged information (although he was happy to have other defense teams present), and said he had information concerning defense strategy.

Judge Pohl, again struggling to mask his exasperation, remarked that this showed why it’s a bad idea for bin Attash to represent himself: he had just conflated about three legal principles. The judge then ordered a recess until Wednesday. The screen went black and the theater lights went up. It was 10:55 am.

Staff at the theater told me that the wife of one of the 9/11 victims came to observe a hearing last week. What it’s like for these family members, watching the achingly slow military commissions process, I can only imagine.

If this trial were held in federal court—President Obama’s original goal—it would almost certainly be over by now. But since 2009 Congress’s annual defense authorization bill has prohibited transfers of Guantanamo detainees to the United States—even for trial. This year, the president vetoed that bill. Let’s hope the final bill will allow Obama to try detainees in federal court, ending this absurd spectacle and finally moving towards justice.


Published on October 27, 2015


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