GUANTANAMO BAY NAVAL BASE—Justice for the five men accused of conspiring to bring about the 9/11 attacks have been delayed another week by the cancelation of court proceedings—the latest road bump on a years-long process to bring the process to a conclusion.
This week’s setback is symbolic of a larger problem for families of 9/11 victims: Khalid Sheikh Mohammed, who has acknowledged being the mastermind behind the 2001 attacks, still hasn’t been brought to trial. Instead, the military commission proceedings are bogged down in a pre-trial phase, as it has been for the past three years.
The military commission this week was to focus on the alleged FBI infiltration of one of the defense teams. But just before the proceedings were to start, a Department of Justice official asked for more time because he was apparently not prepared to argue the motion.
The proceedings were further set back by protests from some of the defendants, including Khalid Sheikh Mohammed, that they were being touched by female guards during cell extraction. The defendants argue that this is against their religion.
A year ago Gen. Mark Martins, the government prosecutor in the case, predicted that the trial would begin in January 2015. Just a month from that date, he now no longer believes that to be realistic, and will no longer estimate a timeline for the trial.
“We don’t have a date, and I’m not prepared to speculate,” Martins said. “Due process is not purely measured by time... following the law is a form of progress, and that’s what we’re doing, and that’s what we’re going to continue to do until the trial has reached its conclusion.”
The process of trying KSM and his alleged co-conspirators has been circuitous: After his capture in 2003, he was held and tortured by the CIA at overseas black sites, eventually arriving at the detention center at Guantanamo Bay in 2006. Then came an initial military commission process, after which the Obama administration attempted to transfer the 9/11 five for trial in New York City in 2009. Facing a political backlash, they reversed course in 2011 and announced that the military commission process would be restarted.
The recent release of the Senate Intelligence Committee’s CIA “torture report” has led to questions about whether the 9/11 five’s trial process will be shortened or lengthened. KSM’s lawyer said it laid bare how much was left untold about his client’s story.
“I’m pleased that a lot more information than was available previously is now available, but also acutely aware about how much remains under wraps,” said David Nevin, the attorney for KSM.
Martins, the prosecutor, said he believes that the release of the Senate report will actually facilitate a faster trial process, telling reporters that its publication “surely accelerated the provision of specific material to the defense that would have otherwise occurred through the discovery process,” and made previously classified material available for public discussion.
The continuous delays have frustrated some families of 9/11 victims, some of whom believe that the whole process should be scrapped. The military commission’s trial phase has yet to start, and may not begin for years.
“The military commissions set up to handle the case of KSM [and the other four co-defendants] at Guantanamo has little precedent for handling such cases and should never have been the venue chosen,” said Rita Lasar, a member of September 11th Families for Peaceful Tomorrows. Her brother perished in the North Tower of the World Trade Center in the 9/11 attacks. “The military commission should be abandoned and the five detainees should be tried in an Article 3 court, which our Constitution provides for right here in New York City, where most of the victims, including my brother, were killed.”
Gordon Haberman, whose daughter was killed on 9/11, told The Daily Beast that while the proceedings appear to be “mired down,” he is ready to wait for the eventual outcome.
“While I also am frustrated by which seem to be interminable delays and wish I could hasten the proceedings forward, I realize that the defendants are guaranteed the right to a vigorous defense. This is the manner in which America conducts our system of justice,” Haberman said.
Nevin said that the delays have been in part caused by “preliminary skirmishing” over issues of discovery and detainee treatment. “Once we get to the point of being able to defend the case, then the thing can move forward,” he told the Beast.
The cancellation of this week’s proceedings also had a taxpayer cost. To facilitate the proceedings the government paid between $150,000 to $170,000 for a chartered flight between Andrews Air Force Base to Guantanamo Bay, a Pentagon spokesman said. Add to that the per diems paid for the 105 military commission personnel who attend the proceedings, which cost more than $16,000. This does not include the cost of housing press, NGOs and staff at Camp Justice, a number of expeditionary tents set up near the courtroom; nor the time and effort spent organizing the proceedings.
“I’m well aware of impatience and frustration. I’ve got to continue to do the job that I’m doing, and we will do it for as long as it takes,” said Martins, the government prosecutor. “There’s not a chance we’re going to lose interest in this, or this is going to go away until the law has been complied with.”