SECURITY STATES OCTOBER 28, 2013
So when will the 9/11 case go to trial, anyway? I have observed the Guantanamo proceedings for a while now, and hear the question a lot—from supporters and critics of the military prosecution of Khalid Sheikh Mohammed and four accused co-conspirators.
As is well-known, Mohammed and company were not swiftly charged after their apprehensions, in 2002 and 2003. Instead they were detained and interrogated for years, and subjected, at secret foreign prisons, to “enhanced interrogation techniques” by the CIA. Only after transfer to Guantanamo did the Bush Administration take a first crack at prosecution before a military commission, in 2008. But the incoming Obama Administration halted that upon taking office, as it mulled its policy for terrorism trials. That led to the unsealing of a New York grand jury indictment. A deluge of political pushback followed, though, along with Congress’s dumb decision, in 2011, essentially to block the United States from bringing detainees to the mainland for trial. His hands tied, Attorney General Eric Holder, who had championed the civilian forum, chucked the federal prosecution and begrudgingly handed the case over for a third go-round—again before a Guantanamo military commission, this one with procedural enhancements added by Congress.
That was so yesterday.
Ditto the proceedings’ dramatic resumption, a twelve-hour arraignment in May of last year. It drew worldwide attention, but is less and less visible in the rear view mirror. The public’s interest has waned a bit, too. The spotlight having turned away, the 9/11 case finds itself in lower gear these days, entangled in preliminary litigation and still some ways off from an uncertain trial. But just how far off?
A long, long way off, I think, though it is impossible to know just how much time will pass between now and the selection of military jurors—if indeed the case comes to that. During pre-trial sessions this week (which I observed remotely) the prosecution argued for an aspirational, placeholder trial date of early 2015. Yet almost nobody thinks the 9/11 case will be ready for trial then.
Consider Guantanamo’s other high-profile death penalty case, that involving the 2000 bombing of the U.S.S. Cole. The defendant was arraigned in November of 2011, and also faces his own perhaps-unrealistic trial date of September 2014. That would work out to a roughly three-year period between arraignment and trial, in a case that does not even distantly approach the 9/11 case in size and scope. There’s some overlap in the legal issues, sure, like those arising from brutal interrogation methods: the United States publicly has admitted to waterboarding the Cole defendant during his CIA detention, and also to waterboarding Khalid Sheikh Mohammed 183 times during his. As a consequence, in both capital cases, defense counsel will argue (or have already) that the interval between apprehension and indictment was unlawful, or that government misconduct requires dismissal, exclusion of subsequently obtained prosecution evidence, or removal of the death penalty as a sentencing option. Resolving these and other contentions will take a lot of time.
And yet the Cole case involves one accused rather than five, like the 9/11 case does; and implicates a far smaller universe of documents and witnesses, and far less preliminary wrangling, than the most sprawling terrorism plot ever. (In court this week, an attorney for accused 9/11 conspirator Ramzi bin Al-Shibh opposed the government’s proposed timetable, among other things because his team’s investigation could require travel to seventeen countries.) The 9/11 case’s sheer vastness and complexity all but guarantee a deliberate slog to trial. To my eye—and this is only a back-of-the-napkin estimate—even late 2016 might be too early.
Could the pace quicken? Yeah, and it likely will—though the acceleration certainly won’t be profound. The military judge recently set a more fast-paced calendar, for upcoming pre-trial motions hearings. (The defense protested this.) If made permanent, the shift could allow more motions to be argued and submitted for decision—and maybe make for a slightly faster clip than before.
The parties also may soon resolve some sticking points for the defense. One is a “Memorandum of Understanding,” which defense lawyers must execute before receiving classified discovery from prosecutors. Most 9/11 defense attorneys have refused to sign the document, because of objections to court-crafted secrecy rules. The rules' modification, or a rebuke from the military judge (who has suggested limited patience in this regard), could mean the Memorandum’s inking and the handover of significant volumes of defense-critical classified stuff. (The 9/11 case apparently involves the largest classified record in U.S. history.)
Defense lawyers also have been anxious about confidentiality. Some privileged defense emails, for example, were inadvertently culled from Guantanamo computer networks, and turned over to prosecutors in another commission case; the 2012 re-tooling of computer links between Guantanamo and Washington likewise led strangely to the disappearance of confidential defense materials from shared computer networks. In light of these and other snafus, the Chief Defense Counsel instructed her subordinates, in April, to forswear commission email and network drives when sending or storing privileged items; counsel in the 9/11 case also sought to suspend the proceedings, citing the extraordinary measures they had to take to safeguard their secrets. The court recently batted that attempt away. Still, improvements to the defense’s information technology have been proposed. And if made, these might enable defense lawyers to communicate with a greater measure of confidence—and their work to proceed more expeditiously.
None of this portends a radical speeding up, though. Neither the prosecution nor the defense truly desire a hasty process—the former because a surge would risk a finding of unfairness by an appellate court down the road, and the latter because of the extensive investigation and argument required, both to make threshold legal challenges and to put on a defense come trial-time.
If and when that time comes, the trial’s commencement won’t shift the case into overdrive. The merits and penalty phases will occupy many significant time, as will any appellate or other proceedings following a verdict. And reviews of death sentences by a military appeals court are automatic in the commission system; the accused might also push for further consideration by a civilian appeals court, or thereafter ask the Supreme Court to take up the 9/11 case. (Some context again: one commission defendant, an Al-Qaeda propagandist who was convicted in late 2008, now has a case on appeal before the civilian court in Washington, D.C..)
All of which is to say: everybody should get comfortable. We’re nowhere near a trial, much less a final judgment, in history's most consequential terrorism case.