The accused 9/11 plotters led by Khalid Sheik Mohammed return to war court Monday for the first time in six months with an agenda packed with some of the most fundamental issues to bedevil the case — torture, religious accommodation and the sanctity of the attorney-client relationship.
None of it, however, will involve the crime itself that drove creation of the court and prison in this remote outpost in southeast Cuba — the terrorist attacks of Sept. 11, 2001.
That’s because nearly three years after the Obama administration first arraigned the men, the legal landscape has gotten more complicated, not less, in the Pentagon’s death-penalty prosecution of the five men accused of training, directing and funding the hijackings that killed nearly 3,000 people at the World Trade Center, Pentagon and in a Pennsylvania field.
The hearing comes just days after a senior Pentagon policy official told a Senate committee that the tribunal system that George W. Bush built, Barack Obama reformed and Congress blessed is inefficient, and necessarily slower than the traditional federal court system.
“These cases are dragging on for quite some time,” Brian McKeon, principal deputy undersecretary for defense policy, told the Senate Armed Services Committee on Thursday, “because of the new statutory framework.”
“Lawyers are litigating to death every new issue,” he told Alabama Republican Sen. Jeff Sessions, a proponent of military trials for alleged al-Qaida members over the civilian criminal justice system. “Whereas in the civilian court system, because of the speedy trial and the efficiency of our courts, we’re getting convictions and putting these people in prison fairly quickly.”
In fact, three legal issues unique to Guantánamo have arisen since the last 9/11 hearings:
▪ The question of whether the introduction of female National Guard troops assigned to escort duty at the secret prison for former CIA captives amounts to an infringement of the alleged terrorists’ religious rights.
The captives claim that their strict observance of Islam forbids them from being touched by women other than their wives, mothers and close family. They argue that commanders at their secret prison, Camp 7, made this religious accommodation for years. But commanders from the Massachusetts and Colorado National Guard testified in another case that they mobilized the most qualified volunteers to work at the prison, and some of them happened to be women.
The Sept. 11 judge, Army Col. James L. Pohl, has forbidden the prison from letting female guards handle the alleged 9/11 conspirators to and from court and legal meetings at least until he resolves the religious-rights challenge. But he’s unlikely to take that up in this two-week session — beyond a request from the defense lawyers to compel the prison to make evidence and witnesses available.
▪ Some female soldiers have lodged discrimination complaints against Pohl and another judge for forbidding them from touching the men. On paper, the military is supposed to investigate such equal opportunity complaints within 15 days, and that time period has apparently passed.
Military spokesmen, under orders from Marine Gen. John F. Kelly at the U.S. Southern Command in Miami who supervises the prison, won’t say who’s handling the complaints and how.
In the meantime, attorney Walter Ruiz, the death-penalty defender for alleged 9/11 conspirator Mustafa al-Hawsawi, calls the complaint “a transparent attempt to unlawfully influence” the judge as he decides whether to lift the order against female guards or continue it. Ruiz, a Navy Reserve commander, has filed a legal motion asking the judge to not decide the female guard issue until the equal opportunity complaint is resolved — a move that would keep the ban on female guards intact.
Unlawful command influence has “been called the carcinoma of military justice,” says Ruiz, invoking the Vietnam-era war-crimes prosecution of Lt. William Calley in the Mi Lai Massacre. “If there’s even a hint of unlawful influence in the air, you must dispel it.”
▪ Defense lawyers claim unlawful influence in another area, too: On Jan. 7, Deputy Secretary of Defense Robert Work signed a single-page rule change that ordered military judges assigned to Guantánamo cases to relocate to the remote base from charges until trial.
Just one month earlier — perhaps record time in Pentagon rule-changing — the senior Pentagon official overseeing the war court, retired Marine Maj. Gen. Vaughn Ary, wrote a memo seeking the change that declared: “I believe the status quo does not support the pace of litigation necessary to bring these cases to a just conclusion.”
Nobody’s moved yet. The three judges hearing war court cases are from the Army, based at Fort Bragg; the Navy, based in Italy; and the Air Force, based in Washington, D.C.; and none of the services has yet to cut orders or make a plan.
Defense lawyers argue that order amounts to meddling in the independence of the judge that Congress gave them when they adopted the military commissions act in 2009.
For Ary, however, it appears to be an efficiency question.
He wrote in an internal Pentagon document obtained by the Miami Herald that the war court only met 34 days in 2014 and averaged five actual court hours each day — at a cost of $78 million, excluding the costs of 153 U.S. military forces assigned to the war court, whose salaries and other costs are borne by their services.
That worked out to $2,294,117 million for each day the court was open, $458,823 an hour on mostly tangential pretrial issues or $7,647 a minute.
The hearings also come in the aftermath of release of the so-called Senate Torture Report that declassified some of the more graphic things that the CIA did to the men in secret overseas prisons before delivering them to Guantánamo in 2006 — rectal rehydration, waterboarding, sleep deprivation.
The chief prosecutor until at least November 2017, Army Brig. Gen. Mark Martins, had described declassification of the findings and recommendations of the Senate Intelligence Committee as a necessary hurdle in the case.
But that may have only thrown more hurdles in the path to trial. Since then, the judge has ordered the prosecutors to go back and review more than two years of court records — secret filings, redacted motions, transcripts of closed sessions — to see what the public might now be allowed to know.
Martins said that process should be complete in September.
In the meantime, defense lawyers say the 480-page portion of the 6,200-page Senate report has only whetted their appetites to see the rest of the document — and find out what else happened to their clients in CIA custody as they chart the path to a trial whose date has not yet been set.
“This is totally uncharted territory, totally unplowed ground,” said David Nevin, attorney for the alleged mastermind, Mohammed.
“These preliminary trial sessions are an indispensable part of our justice system,” Martins said in a statement Sunday night. “They stand in stark contrast to the vacuums of law and order in darker corners of the globe.”
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The Miami Herald guide to the Sept. 11 war crimes trial here.