After 19 years, justice has yet to be attained in the case against the plotters of the Sept. 11 terrorist attacks — and a year dominated by a global pandemic has pushed the start of the trial at Guantanamo Bay back even further.
Al Qaeda terrorists crashed hijacked planes into the World Trade Center buildings, the side of the Pentagon, and a field near Shanksville, Pennsylvania, killing nearly 3,000 people on Sept. 11, 2001, but the five men believed to be responsible for the plot have yet to face a trial.
The case’s progress came to almost a complete halt amid the pandemic due to travel and quarantine restrictions on the Caribbean island. The war court permits the five alleged 9/11 plotters to meet with their lawyers face to face, and the military commission says that during the pandemic, some defense counsels have had the option to communicate with their clients through private, secure video teleconference transmissions. No hearings have been held since late February, and the trial, which had been slated to begin Jan. 11, 2021, has likely been postponed for a few months, if not longer, raising questions of whether jury selection will begin before the 20th anniversary.
Khalid Sheikh Mohammed, dubbed “KSM” and described as “the principal architect of the 9/11 attacks” in the 9/11 Commission Report, was a close ally of Osama bin Laden and will be on trial alongside his nephew, Ammar al Baluchi, alleged hijacking trainer Walid bin Attash, facilitator Ramzi bin al Shibh, and al Qaeda money man Mustafa al Hawsawi.
Air Force Col. Shane Cohen, who had sent the January 2021 trial date, added to delays when he announced in March that he was retiring from the military and was thus leaving the case after presiding over it for less than a year. Cohen had taken over for Marine Col. Keith Parrella.
“Our client, this nation, deserves a reckoning,” prosecutor Edward Ryan told the court last July in pushing for a trial, but the reckoning is yet delayed.
The judge handling the case since August, Army Col. Douglas Watkins, said last month that “in response to the Pandemic, the Commanders of U.S. Naval Station Guantanamo Bay, Cuba and Joint Task Force, Guantanamo Bay, have instituted numerous health and welfare-related restrictions (to include quarantine requirements for Commission participants) that make it impracticable for this Commission to hold hearings at Naval Station Guantanamo Bay while these restrictions remain in place.” The military commission filing deadlines were initially extended for 120 days beginning in late March, but the delays soon stretched longer. Filing requests are currently extended 180 days past the scheduled January trial date, suggesting jury selection would not begin before the summer of 2021. Watkins recently canceled planned hearings for September but tentatively scheduled hearings to begin again in late October. The U.S. government told the court in July that it was “formulating a plan for the responsible resumption of hearings.”
Carol Rosenberg, a New York Times reporter who has spent years covering the Guantanamo hearings, wrote last week that the judge denied a prosecution proposal to “send military commissions support staff to Guantanamo” in late September “to quarantine for two weeks.” The proposal hoped that “the first wave of war court workers would be Covid safe by the time the judge, lawyers, and other staff would arrive on a war court flight” in early October “for two weeks of quasi-quarantine at Camp Justice.” But the “potential hitches” with the case moving forward include “open questions on how testing would work and whether folks who test positive for the virus would be medically evacuated.” The prosecution’s proposal remains nonpublic, but Rosenberg said she was told “their vision excludes 9/11 family members and other victims as well as legal observers” from being able to view the proceedings in person, although a few members of the media might be allowed after being “quarantined as well — in tents.”
James Harrington, who had served as the lead counsel for bin al Shibh since 2012, also caused a possible delay when he left the case in March due to health reasons. The accused terrorist’s new lawyer, David Bruck, told the court in July that he would need “30 months after resumption of normal working and travel conditions” to “develop an attorney-client relationship” and “be ready for trial.”
The trial will eventually be held at a unique national security courthouse known as the Expeditionary Legal Complex — a courtroom including a spectator gallery that has already featured dozens of pretrial hearing sessions. Guantanamo Bay, home to thousands of military members, is still ill-equipped to accommodate dozens or hundreds of journalists along with large legal teams from both the prosecution and defense for what is expected to be a lengthy trial.
The case has been delayed multiple times, following unfavorable Supreme Court decisions under President George W. Bush and due to a controversial and aborted effort by President Barack Obama to try the men in federal court in New York City. The military commissions are a hybrid between a military tribunal and civilian court, authorized by the Military Commissions Act of 2009 after a prior setup was found unconstitutional. Other issues have plagued the court proceedings, including how to handle allegations of torture and the use of classified information during the trial.
The defense teams have sought to paint the CIA’s interrogation program as synonymous with torture and claim that the confessions obtained through “clean” interrogations conducted by the FBI after the detainees were transferred to Guantanamo Bay in 2006 should be tossed. The defendants’ admissions to the FBI were thrown out by one previous judge but reinstated by another. One of the men who waterboarded KSM in 2003 testified before the court in January.
KSM confessed to planning the 9/11 attacks in a March 2007 statement to the Combatant Status Review Tribunal.
“I was responsible for the 9/11 operation, from A to Z,” KSM said. “I was the operational director for Sheikh Osama bin Laden for the organizing, planning, follow-up, and execution of the 9/11 operation.”
