Will the accused 9/11 plotters ever be tried? Not in 2016

Khalid Sheikh Mohammed, the accused ringleader of the 9/11 attacks, in a courtroom sketch at a military commission hearing in 2012.
Khalid Sheikh Mohammed, the accused ringleader of the 9/11 attacks, in a courtroom sketch at a military commission hearing in 2012. Tribune Content Agency

Among the many heroes of Sept. 11, 2001, New York firefighter Ron Bucca earned a special place when he charged up 78 floors inside the doomed South Tower of the World Trade Center in a valiant but vain attempt to rescue 200 people waiting for an elevator that never came.

Bucca died with hundreds of others as the South Tower crumbled at 9:59 a.m., 56 minutes after United Airlines Flight 175 slammed into the skyscraper that Tuesday morning. His fire coat was later found, wrapped around one victim in an apparent attempt to give comfort.

More than 14 years later, the firefighter’s brother traveled to the U.S. military prison at Guantánamo Bay, Cuba, earlier this month to attend the most recent in a long string of pretrial hearings for Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, and four other alleged al Qaida plotters.

“I just wanted to see the bastards,” Al Bucca said in a hangar in early December near the heavily guarded courtroom where a military commission had convened.

Bucca and other relatives of the 9/11 victims may have to wait a very long time to see justice served, thanks in part to the complexity of the case, where the role of torture has entangled nearly every step the military commission takes. Adding to that, analysts say, is Congress’ refusal to allow the transfer of the alleged terrorists to the United States, where they could be tried in a civilian federal district court.

That means that for every hearing in the case, some 150 defense lawyers, prosecutors, legal aides, official observers and reporters must fly to Guantánamo, a process that has helped make the pace of the military commission proceedings glacially slow. The 9/11 military commission met for just 11 weeks in 2015; for comparison, federal courts in the United States operate 52 weeks annually.

“The government insisted on using an untested process,” Eugene Fidell, a lecturer at Yale Law School and one of the country’s foremost experts on military justice, told McClatchy. “Congress has forced the executive branch to keep the affected defendants in Guantánamo, where there is no civilian federal court and where logistics are a nightmare.”

Nine years after the alleged 9/11 plotters were transferred to Guantánamo from CIA secret “black sites” in foreign countries, attorneys involved in the case say it could be another decade before the trial even starts.

Even then, the allegation that the defendants were tortured during their years in CIA custody could undermine any guilty verdicts and lead to years more of appeals, first before the United States Court of Appeals for the District of Columbia and then the U.S. Supreme Court.

Retired Rear Adm. John Hutson, a former Navy lawyer, is a big proponent of the military justice system, but even he says it’s the wrong system for the 9/11 trial.

“There have been all these hiccups along the way that nobody expected and nobody knows how to deal with because there’s no established procedure,” Hutson said. “Lawyers love procedure, and we love to rely on what’s gone on in court beforehand, but we don’t have any of that here.”

The specter of past torture, documented in a December 2014 Senate report that described the CIA’s Rendition, Detention and Interrogation Program, haunts the case. The report described how Mohammed and the other defendants were waterboarded, given “rectal hydration” that lawyers say amounted to sodomy and were otherwise abused during their years in CIA custody.

Now the military commission judge, Army Col. James Pohl, and the lawyers are struggling with how to deal with that legacy. Evidence obtained from torture by law cannot be presented to the commission. Defense lawyers argue that means any testimony obtained from the defendants, even after they were transferred from CIA custody to Guantánamo, is fatally tainted.

“You really can’t divorce the military commission from the unlawful detention and interrogation regime,” said Naureen Shah, a lawyer with Amnesty International, one of 13 advocacy groups and universities cleared by the Pentagon to send official observers to monitor the 9/11 trial.

“What we’ve never seen from the government, the judge or the Obama administration is a commitment to disclosing what happened to these men in the detention and torture program,” Shah said. “Because of that, there will just continue to be delays in these proceedings.”

“Jesus Christ, if it’s not admissible, it’s not admissible,” Hutson said. “To say it’s admissible only in a military commission just undermines the entire justice system of the United States. We’ve got the best justice system in the world in our federal courts. We should be displaying that to the rest of the world. But instead we’re ferrying a bunch of observers to Gitmo to show them this hokey system down there.”

The specter of torture even hovers over issues that, to the casual observer, seem divorced from the search for guilt or innocence, such as the arguments in this month’s hearing over whether women guards should be allowed to touch the defendants – something defense lawyers have argued not only offends the defendants’ conservative religious views but also recalls abusive treatment at the hands of the CIA.

Over three-plus days of testimony by current and former commanders of Camp 7 – the section of the Guantánamo prison where Mohammed and other “high-value detainees” are held – defense attorneys sought to link the defendants’ aversion to interaction with American female military personnel to the way they had been treated in CIA custody.

Walter Ruiz, a former Navy commander who is lead defense lawyer for Mustafa al Hawsawi, one of the accused plotters, repeatedly asked the Camp 7 commanders whether they were aware of alleged incidents of sexual humiliation and other abuse by female interrogators. He even questioned an Army National Guard major, who like other camp commanders were not allowed to be identified for their personal security, about his experiences at a U.S. detention center in Iraq.

“Based on your experience and your time in Camp Cropper, did you have knowledge that any of the detainees in Camp Cropper were ever subjected to being rubbed with fake female menstrual blood?” Ruiz asked.

The major responded: “I have no knowledge of that.”

Torture is only one overlay that is delaying the proceedings. Since Mohammed was charged with murder and war crimes in February 2008, defense lawyers along with military prosecutors have filed almost 400 motions, ranging from the issue of female guards touching the detainees to whether the death penalty should be applied. Attorneys on both sides have filed hundreds more responses to the motions.

In one motion litigated for hours during the most recent session, Ruiz argued that the trial had been tainted by public statements in which President Barack Obama and then-Attorney General Eric Holder predicted conviction and a death sentence for Mohammed.

Ruiz played for the judge a video in which Obama, as part of his ultimately failed effort to try the 9/11 defendants in federal court, said in November 2009: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.”

In a civilian setting, such statements might be seen as merely inappropriate. But in a military setting, where the president is commander in chief, they might be viewed as a directive to the military officers and enlisted men who will make up the jury.

Other troubling incidents have added to the delay. In 2014, proceedings were suspended for months while the Justice Department investigated whether the FBI had tried to turn one of the defense attorneys’ staff members into a confidential informant.

In March 2013, Cheryl Bormann, an attorney for defendant Walid bin Atash, said she had found a listening device planted in the smoke detector in one of the Guantánamo “meeting huts” where lawyers meet with their clients, which the defense has claimed in subsequent motions violated attorney-client privilege.

In yet another dramatic turn nine months ago, accused 9/11 plotter Ramzi Bin al Shibh told the court that he recognized his government-provided translator as a former CIA employee from his brutal overseas interrogations years earlier.

“The problem is, I cannot trust him because he was working at the black site with the CIA, and we know him from there,” Bin al Shibh said.

After prosecutors acknowledged the connection, the courtroom translator was replaced. But the incident fueled defense suspicions that the CIA has infiltrated the trial process, a claim contained in still more motions. The incident caused yet another delay.

Hutson, who is not part of the 9/11 trial process, said that the lack of precedent leaves the prosecution always reacting to aggressive defense counsel.

The chief prosecutor, Army Brig. Gen. Mark Martins, and his team must “respond to all these motions,” Hutson said. “He’s stuck with the law such as it is, and this is all unprecedented. So he’s out there kind of flailing away. . . . If they were in a U.S. district court, the prosecutor would have a whole library full of law books that he could rely on. Here Martins has no idea what the law is because there is no law.”

Two years ago, Martins predicted that the actual trial of the alleged 9/11 conspirators would start by January 2015. Now, he is offering no such forecasts.

“You have defense counsel zealously defending the accused, and we’re zealously representing the people and the government,” Martins said. (You’ve got) the judge, an independent judge, who is viewing these things in his own way, properly trained, ensuring he’s ruling on evidence (and) is ruling on it. That’s the system we set up. It is not driven by a time line. I understand people’s frustrations. I hear it all the time and deal with it. I’ve got to do our duty in the law.”

James Rosen: 202-383-0014, @jamesmartinrose