Why the 9/11 Trial is Taking so Long

I was recently asked to be interviewed by Fox News for a piece they were planning on running about the 9/11 military commission trial at Guantanamo. (I am a former Guantanamo military defense counsel and have published several articles on the commissions.)  I am sure there is not a lot of overlap between The Faculty Lounge's readership and Fox News viewership, so I'm sure very few, if any, TFL readers saw the piece. If you missed it, don't worry, you didn't miss too much.  Fox only used about a 10 second soundbite of my 20 minute interview.  However, they did weave a couple of other pieces of information that I provided into the story, and the overall piece is largely unobjectionable, if not exactly illuminating.   

As background information, the 9/11 defendants were first arraigned before the military commissions at Guantanamo in May 2008.  After significant pretrial motion hearings had taken place, those charges were later withdrawn during the Obama administration, as the Administration originally planned to transfer the defendants to be tried in federal court in New York.  However, after that plan ran into opposition, new military commission charges were sworn in 2011 and referred to trial in 2012.  So, the current case has been in pre-trial motions for the last 9 years.  I don't know if this is the longest period of pretrial motion practice in a criminal case in U.S. history, but it certainly has to be up there near the top.

Just in case any TFL readers are interested in this question, or might even want to discuss this question in class, here is my take on why the 9/11 trial is taking so long:

First and foremost: torture.  What should have happened when the 9/11 suspects were captured is that they should have been arrested by the FBI, and transferred to Federal Court to face terrorism charges.  Had this occurred, the trial likely could have taken place within a couple of years and these men would all have been convicted, likely sentenced to death and probably executed by now, as happened for example, with Timothy McVeigh, the Oklahoma City Bomber. But instead, the 9/11 co-conspirators, including the alleged mastermind, KSM, were taken to secret CIA black sites, or ghost prisons, where they were subjected for many months to torture before it was determined they had no more intelligence value, at which point these so called "High Value Detainees" were transferred to Guantanamo in 2006.

The fact that all 5 of the co-defendants were tortured has caused major obstacles and delays in bringing them to trial, as the Court has tried to work through motions relating to torture issues.  Some of these issues are evidentiary issues, include the admissibility and reliability of evidence obtained through coercive means, and whether subsequent self-incriminating statements made by the defendants after the active torture had ceased were untainted, or should be considered tainted derivative statements or fruit of the poisonous tree.

Another issue stemming from torture realties to the mental state of the defendants after being tortured and their ability to meaningfully assist the defense. In fact, there were originally 6 people charged, but charges were dropped against one co-defendant, Mohammed al Qatani, at least in part because he had been tortured so badly and suffered such severe mental health consequences that their were serious concerns about his mental fitness to stand trial.  The issue of torture has also been raised as a potential defense or mitigating factor related to the death penalty.  The defense has argued that, by torturing the defendants in violation of international law, the U.S. government has engaged in such outrageous conduct that it should be penalized by not being allowed to execute the persons that it previously tortured.  The 9/11 court has yet to rule on this issue.

Another issue is the high level of classification of all the information related to the CIA torture program.  The government has been extremely reluctant to provide information about the program and the black sites, information which the defense considers essential to its ability to have a fair trial.  There have been numerous lengthy battles over getting evidence declassified or otherwise getting defense counsel access to the classified evidence.

Another huge issue is logistics.  None of the prosecutors, defense lawyers and judges are stationed at Guantanamo. They, along with all of the court personnel, witnesses, interpreters and other court personnel have to be flown into Cuba for every single court-proceeding.  This requires coordinating the schedules of dozens of people -- including many civilian defense attorneys with busy private practices who have been brought in as learned death penalty counsel -- just in order to have a motion hearing.  It is impossible to have a quick status hearing or any other kind of short hearing to keep the process moving forward.  Transporting the entire prosecution and defense team to Guantanamo, along with the press, NGO human rights observers, and 9/11 family member spectators has proven to be a logistical nightmare.  And of course, the COVID-19 pandemic just complicated matters even further, causing multiple planned hearing dates to be cancelled or postponed.

Key personnel changes have also slowed down the military commissions.  The military commissions were originally envisioned to be prompt summary procedures entirely staffed by military personnel, but this kind of military commission with limited due process was rejected by the U.S. Supreme Court in Hamdan v. Rumsfeld.  Under the 2006 Military Commissions Act and 2009 amendments thereto, the military commission came to be more of a hybrid of court-martial and federal court procedures, with quite robust due process for the defendants.  As the original military commissions morphed into something else, almost all the military personnel involved had to be swapped out.  Military officers typically change assignments every two to three years, and, once they have served their initial military commitment, they are typically eligible to separate at any time.  And military officers can retire after 20 years of service.  Over the years, quite a few personnel, including judges, prosecutors and defense counsel, have been reassigned, honorably discharged or retired.  There have been 7 different judges involved in 9/11 pretrial hearings.  As the proceedings have dragged on for over a decade, some older civilian counsel have developed health issues and had to step down.  On top of that, in the early years of the commissions, several prosecutors resigned in protest over the intended use of tortured evidence.    Each time someone new has to be brought in as a replacement, it can take months for them to get the necessary security clearances and to review the vast amount of evidence and records from the case in order to get up to speed.  In the meantime, court proceedings typically grind to a halt. 

Another major factor slowing down these cases is the fact that the government is seeking the death penalty.  As we all know, death is different and capital cases are much lengthier than non-capital ones.  In capital cases, the defense counsel are obligated to raise every possible issue that could potentially result in sparing their client from the death penalty, no matter how farfetched or unlikely to succeed.  Because the military commissions are a completely invented court system with no prior precedent, each issue raised by the defense is an issue of first impression that the court has to address.  The fact that the defendants were all tortured to varying degrees is an issue that the defense has sought to raise in numerous ways to prevent their clients from being executed.

This is just a partial list of the factors that have slowed things down. There have also been self-inflicted wounds that have resulted in delays, such as revelations of government eavesdropping on defense counsel and the defendants that had to be investigated.  As a cumulative result of all of these issues, at this point, it appears that a trial is still multiple years away.

On the 20th anniversary of 9/11, it is almost unbelievable that none of the persons responsible have ever been held accountable in a court of law for their role in the worst terrorist attack in U.S. history.  For those who believe that justice delayed is justice denied, the inability of the U.S. to bring the alleged 9/11 co-conspirators to trial is a monumental failure and an affront to justice.

 

 

Comments

[anon]

Did Obama/Holder reject an offer by KSM to plead guilty, questioning his sanity, and owing to their supposed preference for a civilian court (which, of course, never happened)?

Did not KSM state that he wanted the death penalty to serve his goal of martyrdom?

[Patrick S. O'Donnell]

Thank you for this significant and spot-on post. This is a perfect illustration of a moral, legal, and political clusterf*ck, one symptomatic of the ills that beset what remains of our democracy, which has long been degraded and diminished by advanced (turbo- and finance) capitalism and the power of the presidency, among other causes. First and foremost, torture indeed. I have been following the writings (published and online) of Lisa Hajjar and David Luban on this subject from the beginning and of late the latter's posts (at times with co-authors) at the blog Just Security, which I am sure your are familiar with. I appreciate the work you are doing and hope you will continue to share your well-informed and seasoned thoughts on this subject. And should anyone be interested, I have some relevant literature in my bibliographies on (i) torture and on (ii) terrorism, and to some extent my compilations for (iii) international criminal law and (iv) punishment and prisons, all available at my Academia page.

[David Frakt]

anon - At one point, back in 2008, there was some discussion of a guilty plea by KSM and his co-conspirators. See article here. https://abcnews.go.com/TheLaw/Terrorism/story?id=6416393&page=1 But the Judge said he wasn't sure if they could plead guilty to offenses where the government was seeking the death penalty, and they said if they couldn't be sure that they would get the death penalty, then they wouldn't plea.

[David Frakt]

Thanks, Patrick. Please provide a link to your page. If it goes to the spam folder, (sometimes comments with links do) I will fish it out.

[Patrick S. O'Donnell]

David (if I may), thank you: one can click on my name above and it should link to my Academia page. If it does not: https://independent.academia.edu/PatrickSODonnell

The sundry material there is largely in alphabetical order and only the study guides for religious worldview are set apart under "teaching documents" (also in alphabetical order). So one has to patiently scroll down the page to find the aforementioned lists, which can be looked at online and/or downloaded in pdf format.

[anon]

Under SEction 802 of the UCMJ, did any provision against accepting KSM's plea apply?

[David Frakt]

anon -

The Uniform Code of Military Justice (UCMJ) does not apply to the military commissions of Guantanamo. They are governed by the Military Commissions Act.

[anon]

Is it not the case that military commissions shall be guided by the appropriate principles of law and rules of procedure and evidence prescribed for courts-martial?

[anon]

PS

David, you say, "the Judge said he wasn't sure if they could plead guilty to offenses where the government was seeking the death penalty."

There is a specific, on point provision of the UCMJ that could cause such concern.

What specific, on point provision of the MCA applied to create this "uncertainty" as you describe it?

If only the MCA applied, was the concern of the Judge -- that there "might" be a problem with the plea on these grounds -- valid?