Published November 20, 2014
A weeklong hearing into the legal framework for the Sept. 11 terrorism military tribunal came to an end Friday without a ruling on the most significant motions but progress on some issues that must be resolved before the eventual trial.
After hours of often arcane debate at the U.S. base in Cuba, the military judge presiding over the case deferred most decisions until later. Notable among them were proposed rules for handling classified evidence that prosecutors said are necessary to protect national security and defense lawyers argued are overly broad and restrictive.
Army Col. James Pohl heard arguments on nearly 20 motions and did resolve some matters, including issuing a ruling that the five men charged with planning and aiding the Sept. 11 attacks may sit out their pretrial hearings. While the extent of the progress was in dispute, both the chief prosecutor and defense lawyers agreed the case was unlikely to be ready for trial in 2013.
"We just scratched the very surface of the trial this week," said James Connell, a lawyer for Ali Abd al-Aziz Ali, a Pakistani national accused of transferring money to the Sept. 11 hijackers.
The chief prosecutor, Army Brig. Gen. Mark Martins, insisted there had been significant forward motion in the long-stalled case, notably hearing all the arguments on the proposed security rules so the judge can issue what are known as protective orders that will allow the defense to begin reviewing classified evidence in the case.
"There are some important motions that we didn't get to, but I would submit that's the nature of litigation," Martins said.
The five defendants facing charges that include terrorism and murder include Khalid Sheikh Mohammed, a self-styled terrorist mastermind who grew up in Kuwait and attended college in North Carolina. He condemned the U.S. in a lecture to the court on Wednesday as he wore a camouflage vest that had been approved by the judge.
None of the defendants appeared in court Friday. Lawyers for the men cited several reasons, including that Friday is traditionally set aside by Muslims for prayers or that they did not recognize the proceedings as legitimate.
In the spectator section of the court the entire week were nine relatives of people who were killed in the Sept. 11 attacks. Several said they were pleased to see some movement in the case, which was stalled by legal challenges and a political fight over whether the case should be tried in a civilian court in the U.S. or at Guantanamo.
"They will carry this to a conclusion, whatever that conclusion might be," said Gordon Haberman of Farmington, Wisconsin, whose 25-year-old daughter, Andrea, was killed in the World Trade Center. "But I'm comfortable that the process is finally on its way."
Al Acquaviva, whose 29-year-old son, Paul, was killed in the World Trade Center, said he has been frustrated by the slow pace of the proceedings.
"I believe in our judicial system. I'm a reasonable person. But what happened to: "Justice delayed is justice denied.'," said Acquaviva, who lives in Wayne, New Jersey. "For 11 years now, where's the justice for my boy? He hasn't gotten any justice yet."
The judge heard lengthy arguments on a motion from the defense asking the judge to decide that the constitutional rights recognized in civilian criminal trials will apply in the special tribunals for war-time offenses. Prosecutors argued it was too soon to make that determination and the judge deferred a ruling.
Most of the arguments centered on the proposed security rules, including provisions that the defense said will prevent the five prisoners from publicly disclosing what happened to them while detained in secret CIA prisons overseas. The U.S. government says they were subjected to "enhanced interrogation"; critics say it was torture.
Lawyers for the defendants said the proposed rules would prevent them from using what happened in the CIA prisons to challenge statements the men made to authorities or to argue that they shouldn't get the death penalty. It would also prevent the public from learning details about the harsh interrogations.
"If the military commission adopts the government argument it will mean that things that are critical to you as members of the public will never be known," Connell said.
Pohl also heard arguments without ruling on a defense motion to grant public access to all closed-circuit television transmissions of the proceedings in the U.S. and not just at Fort Meade, Maryland.
The week's hearing was repeatedly interrupted by defense complaints that their office space on the U.S. base is so contaminated with mold and rat and mouse droppings that it has been making them sick. Military officials eventually agreed to conduct a major cleanup of the buildings and to bring in a health expert to evaluate any health risk.