By Kevin Johnson and Tom Vanden Brook USA Today
WASHINGTON — The 20 issues set for debate beginning Monday in pretrial military proceedings against Khalid Sheikh Mohammed and four alleged al-Qaeda associates offer at least a partial explanation for why it has taken so long — 11 years after Mohammed’s capture — to bring the alleged 9/11 mastermind to justice.
Col. James Pohl, the presiding military judge, has set aside a full week at the detention center in Guantanamo Bay, Cuba, to consider a range of potentially toxic legal arguments that continue to test the government’s authority to prosecute the terror suspects by military commission.
There are defense requests for information on some of the government’s most sensitive operations, including what it calls enhanced interrogation methods and the shuffling of suspects among a former network of “black sites,” or secret prisons.
One defendant, Mustafa al-Hawsawi, an alleged financier of the September 11, 2001, attacks on the World Trade Center and the Pentagon, has asked that his case be split from the group. There are questions about the mental competence of Ramzi Bin al-Shibh, who allegedly sought to be part of the 9/11 hijacking team. And among the most potentially disruptive: an inquiry into the FBI’s questioning of a defense team member about the release of Mohammed’s personal writings.
Yet the question that has shadowed the case, especially Mohammed’s fate since his dramatic 2003 capture in Pakistan, remains one of the most vexing legal quandaries of the terror wars: Are Guantanamo’s military commissions the proper venues in which to prosecute al-Qaeda operatives?
“It’s been such a disaster,” said retired Air Force colonel Morris Davis, a former chief prosecutor at Guantanamo. “Months ago, (Attorney General) Eric Holder said it was a mistake to have referred these cases to military commissions from federal court. He was right. These trials would have been done years ago” in federal court.
NEW YORK TRIAL ABANDONED
Holder had sought in 2009 to try Mohammed and his alleged associates in a New York federal courtroom a short distance from where the World Trade Center towers once stood. But vocal opposition from then-mayor Michael Bloomberg and a coalition of 9/11 victims’ families and lawmakers of both political stripes forced the attorney general to abandon the plan in 2011. This sent the case back into the largely untested military commission system in Guantanamo.
It is where Mohammed and the four others continue to wait for a trial date. And it is where, analysts said, every detail of the case, both in and out of court, can prompt a lengthy legal battle.
Pohl has been confronted with issues ranging from the seemingly frivolous — whether Mohammed could wear a camouflage vest in court — to the extraordinary — the discovery of listening devices in the attorney-client meeting rooms.
Karen Greenberg, director of Fordham University’s Center on National Security, said the long list of pretrial motions set for consideration next week represents a level of “frustration” that threatens the integrity of the system.
“Despite the best efforts of (chief prosecutor and Army Brig. Gen.) Mark Martins to do everything in his power to make this a legitimate proceeding, they haven’t been able to get the defense to the point where they can buy into this,” Greenberg said.
“It is a flawed process because you can’t get that buy-in.”
Some analysts said the system’s flaws are primarily rooted in the earliest and most troubling days of the terror wars, when suspects were subjected to enhanced interrogation, including water-boarding, and shuttled among secret detention sites around the globe before they landed at Guantanamo.
Lawyers in the current case, both government and defense, have continued to battle over what classified information the suspects are entitled to know about conditions of their confinement and treatment immediately after their capture.
“You want to talk about fruit from the poisonous tree,” Greenberg said, referring to the government’s former interrogation and detention practices. “That’s it.”
MILITARY COMMISSIONS ARE ‘LAW-OF-WAR COURTS’
The commissions are necessary to deal with crimes and evidence in situations of hostilities, something all three branches of government agree applies to the armed conflict with al-Qaeda, Martins said. The defendants are alleged to have engaged in hostile acts without wearing uniforms and in violation of laws of war.
“These are traditionally our law-of-war courts, courts that have tried to gain accountability over serious transgressions against humanitarian law and the law of war,” Martins said. “Military courts have been our traditional forum. Though surely effective in dispensing justice in the vast majority of crimes, including terrorism offenses, federal courts have not tried these kinds of cases much.
“And since 2010, military commissions are the only lawful forum to try these defendants. We aim to do so and to do so fairly and in accordance with our values.”
The commissions have been effective in delivering justice, he said. By this week, nine senior or midlevel alleged al-Qaeda leaders will have been arraigned in less than three years, he said. Two have been convicted.
“This is methodical. It’s deliberate,” he said. “I’m sure it’s frustrating to people watching it. But I’m seeing substantial movement that’s happening.”
If numbers are any measure of justice, Davis said the federal courts have proved more capable venues to prosecute terror suspects.
Since the military commission system was authorized in the wake of the wars in Iraq and Afghanistan, seven people have been tried and convicted. In federal court, more than 400 people have been convicted of terrorism or terror-related charges since 2001.
Among them: Zacarias Moussaoui, who in 2005 pleaded guilty to conspiring with al-Qaeda in the 9/11 attacks. In 2006, he was sentenced to life in prison and was transferred to a Colorado federal prison.
More recently, al-Qaeda propagandist Sulaiman Abu Ghaith, the son-in-law of Osama bin Laden, was convicted in March in a New York federal courtroom.
Holder said the successful prosecution had “vindicated” the government’s disputed contention that terror suspects could be safely tried in civilian courts.
“The system is both tried and tested,” Holder said in New York after the conviction.
Holder reasserted that view last month after the conviction in New York of Abu Hamza al-Masri, a radical cleric who once sought to establish a terror training camp in Oregon.
“The case is all the more noteworthy since it continues a trend of successful prosecutions of top terrorism suspects in our federal court system,” Holder said. “With each efficiently delivered guilty verdict against a top al-Qaeda-linked figure, the debate over how to best seek justice in these cases is quietly being put to rest.”
Edward MacMahon, the lead defense attorney in the Moussaoui case, said that disputes with the government over access to classified information and access to potential witnesses — including some of the accused 9/11 plotters at Guantanamo — caused delays in Moussaoui’s federal case and death penalty hearing.
“But you cannot make any comparison between the federal court system and military commissions,” MacMahon said. “One of them (the federal court system) is actually a system. In the other, they make the rules up as they go.”
MacMahon said a separate military justice system is appropriate to deal with combatants captured on the battlefield. “I just don’t think Pakistan (where Mohammed and others were captured) qualifies as a battlefield,” the attorney said.
“I also think it’s unfair to have the victims’ families wait this long.”
‘LEGAL FENCING’ REAL ISSUE
Tim Sumner, co-founder of 9/11 Families for a Safe and Strong America whose brother-in-law was killed in the World Trade Center attack, acknowledges that the military commission process has been “aggravating to watch.”
“All of the legal fencing is a source of our frustration,” Sumner said.
Yet he and some other members of the group, who vocally opposed Holder’s effort to move the 9/11 suspects’ case to a New York federal court, still believe Mohammed is right where he should be. Sumner has often referred to Mohammed and the other suspects as “war criminals” who should be prosecuted in military commissions.
“Had they come to New York, it would have been the same thing,” he said, referring to the long pretrial process.
“The only way for this to get moving is for the judge to set a trial date,” he said. “Whatever it takes, they need to get to work and do this. We’ve started down this process; let’s keep it going.”
