MIAMI — A military judge presiding over the stalled September 11 war crimes tribunal at Guantanamo Bay is being urged to speed things along.
Prosecutors have asked Army Col. James Pohl to set a September 22, 2014, trial date, establish deadlines for pretrial motions and hold a series of monthlong hearings to resolve preliminary matters that must be addressed before the death penalty case against five Guantanamo prisoners can be heard by a jury of military officers at the U.S. base in Cuba.
Prosecutors say in a motion unsealed Monday that the sporadic, five-day pretrial sessions held so far are not adequate for what is believed to be one of the most complex trials in U.S. history.
“The current practice of being in court for five days approximately every six weeks is inefficient and will result in litigation that is unnecessarily prolonged, and does not serve the interests of justice,” they argue in a motion signed by the chief prosecutor, Army Brig. Gen. Mark Martins, and a civilian co-prosecutor, Clay Trivett.
The five prisoners face charges by military commission, a special tribunal for wartime offenses, which include terrorism and nearly 3,000 counts of murder for their alleged roles planning and assisting the September 11, 2001, terrorist attack. The defendants include Khalid Sheikh Mohammed, who has admitted to being the mastermind of the plot.
Their May 2012 arraignment, postponed by a prolonged debate over whether they should be tried in civilian or the military court at Guantanamo, ended up taking 13 hours after the defendants refused to use the court translation system. Subsequent sessions have been put off or delayed by factors that have included a tropical storm threat, the derailment of a train in Maryland that damaged a fiber-optic line that serves Guantanamo, complaints about mold and rat droppings in offices used by defense attorneys and the discovery of listening devices in the rooms in which lawyers meet with the defendants.
Legal disputes have also bogged down the case. Four defense teams have refused to sign a protective order governing the handling of classified evidence, arguing the restrictions are overly broad and intrusive, and they have battled with officials over the rules on communicating with their clients at Guantanamo that they say interfere with attorney-client privilege.
The legal complexity of the case stems from the fact that the men were held for several years by the CIA in overseas “black sites,” where they were subjected to harsh treatment, including prolonged sleep deprivation and waterboarding, that their lawyers say amounted to torture. What happened to the men in custody before they were transferred to Guantanamo is central to the defense, but aspects of the government’s rendition and interrogation program remain classified.
The slow pace has been difficult for observers, who have included firefighters and relatives of people killed in the September 11 attacks chosen by lottery to view what have turned out to be dense, legalistic proceedings at Guantanamo.
“There is a lot of frustration and you can see why,” said retired New York City Fire Department Capt. Al Fuentes, who attended a pretrial session in June. “It never ends.”
Fuentes, who was severely injured when the North Tower of the World Trade Center collapsed during the attacks, added, however, that the delays do not seem frivolous.
“People want justice, obviously, and so do I,” he said by phone from his home in Long Beach, New York. “But the defense attorneys they have a job to do and they are going to do it to the best of their abilities.”
The defense teams have not yet responded to the prosecution’s scheduling motion and lawyers have requested more time to propose an alternate trial schedule. Navy Cmdr. Walter Ruiz, appointed to represent Mustafa Ahmad al-Hawsawi, said he was likely to suggest June 2015. “But even that is ambitious,” he said.
