9/11 pretrial hearings to resume at Guantánamo, but trial date still not in sight

Left to right: Mustafa al Hawsawi, Ammar al Baluchi, Ramzi bin al Shibh, Walid Bin Attash and Khalik Sheik Mohammad, pray at their Guantánamo war court arraignment Saturday, May 5, 2012. Sketch reviewed and approved for release by a U.S. military security official.
Left to right: Mustafa al Hawsawi, Ammar al Baluchi, Ramzi bin al Shibh, Walid Bin Attash and Khalik Sheik Mohammad, pray at their Guantánamo war court arraignment Saturday, May 5, 2012. Sketch reviewed and approved for release by a U.S. military security official. JANET HAMLIN, SKETCH ARTIST

Ahead of nine days of hearings in the Sept. 11 case, the chief prosecutor wrote victim family members that while “much work remains,” he understands their frustration that the five captives accused of orchestrating the worst terror attack on U.S. soil have not yet gone to trial.

Army Brig. Gen. Mark Martins wrote the families in a two-page letter dated Feb. 10 and obtained by the Miami Herald that he disagrees with one defense lawyer’s prediction that pretrial hearings could stretch another 10 years. But separately he declined to offer reporters an alternative timetable.

Sunday, war court staff and attorneys were settling in at this remote U.S. Navy base, site of the tent-city flanked war court, Camp Justice, for hearings scheduled to start Tuesday after the longPresidents’ Day weekend. The flag flew at half-staff to honor Supreme Court Justice Antonin Scalia, who opposed granting detainees access to federal courts, saying the court’s landmark 2008 Guantánamo decision “warps our Constitution.”

Defense attorneys want prosecutors to provide 6.3 million documents on the CIA black site program, say they got 59 secret photographs.

Tuesday’s session resumes hearings recessed on Dec. 11 with defense attorney Walter Ruiz’s prediction of a decade of pretrial preparation, including long challenges to what evidence defenders are entitled to see. Prosecutors had announced in court that they would provide either the judge or defense attorneys with the material they believe is necessary for pretrial preparation by Sept. 30.

For this Sept. 11 trial session, the judge has set an ambitious 39-item agenda that starts with a challenge of whether to go forward this week because the accused mastermind Khalid Sheik Mohammed’s court interpreter has not yet gotten his security clearance renewed.

Once they pass that hurdle, attorneys are predicting lengthy court arguments over how prosecutors will provide pretrial evidence about the years the five accused terrorists spent in CIA custody — from White House memos about torture to the actual “black sites” to the full, 6,200-page Senate Intelligence Committee study on the CIA Rendition, Detention and Interrogation program that waterboarded, rectally rehydrated and otherwise abused the men.

Prosecutors want the judge’s permission to consolidate the pretrial discovery. Defense attorneys want the government to release all the information it has about the program to attack the integrity of some trial evidence and also to bolster their argument that the United States has lost the moral authority to execute them, if they are convicted.

All five are accused of 2,976 counts of murder and other terrorism charges as alleged conspirators in the attacks by 19 hijackers of the four aircraft that crashed into the World Trade Center, Pentagon and a Pennsylvania field on Sept. 11, 2001. Pakistani security forces seized the men in 2002-03 raids, and the CIA interrogated them in secret prisons around the world before delivering them here in September 2006 for trial. They first saw lawyers in 2008.

“It is true that this case presents higher stakes and greater legal and logistical challenges than, possibly, any other trial in U.S. history,” Martins wrote the families.

“I do not dispute that much work remains to be done,” he added, noting that the team was reviewing millions of “records, reports and other documents” from the CIA’s so-called “black-site” program to see which defense attorneys might be entitled to see. Some of it is classified and would not be disclosed to the public, or to the five accused terrorists.

Attorney Jay Connell, who represents the alleged mastermind’s nephew, however, said Sunday that if the prosecution wants to go to trial sooner, it should release to the defenders — all of whom have top-secret security clearances — some 6.3 million documents the Senate Intelligence Committee used for its 6,200-page report on the black sites.

The public has been allowed to see a portion of it, and it gives some details of what happened to some of the five accused terrorists, but not all of them.

“In order for it to happen earlier, the government would have to start turning over the information about torture and black sites,” Connell said. “Right now, that is the key obstacle in the case. The government could back up the truck and drop off the 6.3 million documents at our secret, secure facility on Monday and make all this roadblock go away.”

Otherwise, Connell predicted, the trial would begin in 2021 as lawyers litigate access to evidence. He also attributed delays to the overarching question of which portions of the Constitution apply at the war court.

Martins has long argued that the prosecution has an obligation to sift out the information that the government finds relevant to the defense.

“This is a painstaking process but one we are committed to completing properly and as quickly as possible,” the general told the families.

Part of the issue involves how much information in the national security case the defense lawyers can see. Martins wrote that his side had already handed over 15,000 pages of classified material. But Connell says just 59 pages of it came from the black sites. They are photographs marked “SECRET.”

Editor’s note: An earlier version of this story quoted attorney Jay Connell as saying just 67 classified pages, all photographs, came from the black sites. Connell subsequently corrected that number, saying the figure was 59.

Carol Rosenberg: 305-376-3179, @carolrosenberg