While the White House says new military trials will begin at Guantanamo Bay, three military lawyers who represent alleged 9/11 conspirators say they don't think it will include their case. And documents obtained by Fox News suggest that the trial may be in a holding pattern as the Obama administration looks for a way to bring the accused terrorists into the civilian justice system.
“It's a death by asphyxiation,” Cdr. Walter Ruiz told Fox New in an exclusive interview. Ruiz, who represents Mustapha al Hawsawi, charged with with helping to plan the Sept. 11 attacks, expressed frustration with a go-slow approach to the case.
Ruiz said new Defense Department procedures restrict him and other military lawyers from adequately preparing for and prosecuting the 9/11 case in a Guantanamo military court.
"Most of us, I think all of us, wear the uniform because we have a fundamental belief in those values -- a fundamental belief in the rule of law and what those values stand for,” Ruiz said. “So, yes, there is disappointment.”
His colleague Cdr. Suzanne Lachelier, who represents accused 9/11 conspirator Ramzi bin al Shibh, also says new rules have prevented moving the long-pending prosecution to trial.
“The case is completely stalled,” she told Fox News.
When the Obama administration announced earlier this month that military tribunals would resume at Guantanamo, many assumed that the highest-profile defendants at the prison -- the alleged 9/11 conspirators -- would soon be headed for trial. The lawyers’ experience suggests otherwise.
Lachelier says the money needed for the basic preparation of a defense, has been cut off. Lachelier said when she requested money to travel to Germany, where al Shibh lived with the 9/11 hijackers, including Mohammed Atta, Defense officials refused.
In a March 8 email to Lachelier obtained by Fox News, Defense officials traced the refusal to Attorney General Eric Holder.
"The Attorney General has determined that Mr. Bin al Shibh will be prosecuted in federal court," the email says. "If at some time the Attorney General changes his decision regarding forum, you can resubmit your request."
A Feb. 25 email from the Office of Military Commissions obtained by Fox News was even more specific: “Until the Attorney General says otherwise, any prosecution of the 9/11 detainees will be in federal court. That said, the Convening Authority (the body that oversees the military trials) will not approve, at this time, any travel requests from counsel to investigate or prepare for those cases, or any other cases, earmarked by the Attorney General for prosecution in federal court. Such requests should be put on hold and resubmitted when, and if, the Attorney General changes his forum decision."
Lachelier said the effect is profound.
“Without any funding, without any ability to engage in the standard defense function the rule of law can't be promoted and the case can't move at all,” she said.
The military lawyers say the defense keeps the process moving forward. By cutting off their funding and other restrictions, the 9/11 military trial is effectively stalled.
“You have the uniforms, you have the people, the personnel in place, but it's a shell,” she said. “Everything inside is being choked. Everything we try to do, communications with client, is being blocked.”
The lawyer for accused 9/11 conspirator Walid bin Attash backed up the statements of his fellow defense attorneys. In a statement to Fox News, Lt. Cdr. James Hatcher, concurred with Ruiz and Lachelier, saying his client wants the prosecution to move forward now, regardless of whether it is a military or federal court.
"My client is anxious to have his day in court. He is ready to answer the charges against him. The speedy trial process continues to be frustrated by government delay and indecision,” said Hatcher, on behalf of bin Attash, whose family has close ties to Usama bin Laden. “Speedy trial rights find common ground with the victims and the accused."
The lawyers point to a new policy they say will make it harder for them, as well as attorneys for the alleged architect of the attack, Khalid Sheikh Mohammed, to work together on common elements of the case. It reads in part: "Detainee's counsel shall not disclose contents of any classified documents or information to any person, including counsel in related Guantanamo cases."
Ruiz said there are several issues that involve the 9/11 suspects and other high-value detainees at Guantanamo’s secretive Camp 7 that cannot be pursued if the protective order is enforced.
“What I can only tell you are the effects, and the effects are essentially to cut off our oxygen,” said Ruiz, who said he was limited by restrictions on classified information, “To have the process die on the vine and to keep us from doing and carrying out our most basic and fundamental functions.”
Asked to respond to the military lawyers' claims, White House counterterrorism advisor John Brennan insisted swift justice remains the goal.
“I don't know what those allegations are. I just know that there's strong commitment from [Defense Secretary Robert] Gates, the attorney general and others throughout the government to make sure that we're able to move as quickly as we can,” Brennan told Fox News.
A Defense Department spokeswoman said the decision to cut off the funding was made by the Convening Authority, the body that oversees the trials.
“The decision not to fund travel for the defense attorney for Ramzi bin al Shibh was made by the Convening Authority for the Office of Military Commissions, as that case is not designated for a military commission,” Cdr. Tanya Bradsher told Fox News in a statement. Bradsher later confirmed that the restriction applied the other 9/11 conspirators as well.
As for the protective order, Bradsher said the “implementation of that order has been postponed until a date to be determined.”
Families of 9/11 victims revealed to Fox News that Holder told them in February that taking the 9/11 case to military commissions was like “rolling the dice.” The families say that administration officials said in a recent conference call that the White House was continuing to work to repeal the ban on civilian trails for Guantanamo detainees imposed by Congress.
And given the slowdown in the military justice system, it appears that the administration remains fully committed to a federal trial or no trial at all.