13 Years On, Will 9/11 Ever Go to Trial?

From spies in the defense team to secret kill switches in the courtroom, the list of government perversions of an already-broken trial system is making the quest for justice endless.

In any normal case, in any ordinary court, judges hold preliminary hearings to narrow the issues and move the case closer to trial. But there is nothing ordinary about the prosecution of the five men accused of plotting the Sept. 11, 2001 attacks. And the military commission at Guantanamo Bay, where the case is being heard, is no ordinary court. Instead of bringing the case closer to trial, each preliminary hearing in Guantanamo seems to move it further away.

Yes, the case is complex. But that's not the problem. Federal courts deal with thorny, multiple- defendant criminal cases all the time. Rather, the difficulty is the sheer number of "emergency" issues -- almost all of them unique to Guantanamo -- that keep cropping up. So far, the defense and prosecution have filed together, though the defense far more, 30 individual "emergency" motions -- requests to the court that it take some kind of action.

A set of hearings held on Aug. 11-14 -- the 12th since the defendants were arraigned in May 2012 --continued along the same, troubled path. The parties initially thought they would be dealing with a subject that had been hampering progress on the case since April: the discovery that the FBI had secretly conducted an investigation into possible wrongdoing on the part of one or more members of the five separate defense teams (one for each defendant). Such an investigation could put defense team members in the untenable position of having to provide information to defend themselves or others against possible criminal action -- information that could be used against the interests of their own clients. They could also potentially be forced to expose confidential attorney-client information in the process.

The reasons for the FBI probe are still not entirely clear. All references to the investigation's scope and origin in publicly available military commission documents are blacked out. Media reports, however, indicate that it began over allegations that members of defense teams had improperly disclosed classified information. No charges were ever brought and prosecutors now claim the investigation is entirely closed, though defense attorneys dispute this.

Instead of focusing on the FBI probe, however, the hearings earlier this month were dominated by a new decision that seemed to surprise both the prosecution and the defense -- and delay the proceedings even further: an order from the military judge in the case, U.S. Army Col. James Pohl, to sever the case of one of the five defendants, Ramzi bin al-Shibh, from the joint trial entirely. Neither the prosecution nor bin al-Shibh's defense team had requested severance. "In my 25 years, I've never seen a judge order [severance] without a request" from either the defense or the prosecution, Cheryl Bormann, defense attorney for one of the other 9/11 defendants, told the Miami Herald.

Ironically, Judge Pohl's order indicates that his decision to sever was an attempt to try and move the case along. Without bin al-Shibh in the case, several complicated issues would be removed.

Members of other defense teams were involved in the FBI probe, but it has clearly impacted Ramzi bin al-Shibh's team the most. Though the investigation appears to have begun earlier, the FBI interviewed a security officer on bin al-Shibh's team on April 6, then asked him to sign a gag order not to speak about it. The defense counsel for bin al-Shibh ended up firing that security officer, along with three other members of the team also connected to the probe. "We have basically had a spy within our team for a number of months," James Harrington, lead defense counsel for bin al-Shibh, said in June.

In response to the probe, the court has had to appoint an entirely new, separate special trial counsel team, walled off from the prosecution, to investigate the facts around the FBI's investigation. It has also ordered the appointment of independent lawyers for bin al-Shibh, separate from his trial team, to advise him on whether to continue with his current attorneys or get new ones. Doing so will take time because each lawyer on the new bin al-Shibh team needs to be identified, hired, and provided security clearance, which could take months. Further complicating matters, the prosecution has challenged bin al-Shibh's competency to stand trial, after he erupted into outbursts during an earlier hearing, along with claims that he had been harassed by guards at Guantanamo.

But instead of welcoming the bin al-Shibh severance, the prosecution reacted by filing an emergency motion, asking that the judge reconsider his decision. Though certainly interested in moving the case forward, prosecutor Clayton Trivett told the judge during the hearing that the cost of severance was not worth saving a few more months of delay. He called it a "drastic" remedy, and argued that it would be traumatic to victims and family members of the 9/11 attacks who would then have to follow two cases and testify at two trials.

As a result, rather than dealing with the FBI probe or the approximately 20 other motions on the docket -- some of which have been pending more than a year -- Judge Pohl ended up listening to arguments about whether he should reconsider his decision. Instead of moving the case forward, his order moved the case back. Nothing can be dealt with until the conflict of interest is resolved. And that could take until the end of the year.

The bin al-Shibh developments are only the latest in a long series of only-in-Guantanamo delays. Just after the defendants were arraigned in 2012, defense counsel filed an emergency motion contending that their offices were so infested with rats, mold, and rat feces that they could not use the space to carry out their work. Resolution of that issue resulted in multiple delays.

In January 2013, the court's audio-visual feed, visible to a small set of commission observers, was abruptly cut off by someone other than Judge Pohl; previously, Pohl was believed to be the only person with the authority to use the unique-to-Guantanamo "kill-switch." Later, a clearly annoyed Pohl learned that something called the Original Classification Authority (OCA) -- which is likely the CIA given that most of the information subject to censorship in the case is related to the agency's rendition, detention, and interrogation program -- had hit the kill switch. Judge Pohl promptly cut off their privileges. But the episode sparked a number of emergency motions from the defense, asking the court to look into what other sort of monitoring the OCA might be up to.

Later, defense attorneys discovered listening devices disguised as smoke detectors in attorney-client meeting rooms, despite prior assurances from Defense Department officials that these rooms were bug-free. Then in April, a "near catastrophic" Defense Department server failure resulted in the disappearance of an enormous number of prosecution and defense files from the system set up to handle the highly classified documents in the case. This resulted in more emergency motions, delaying proceedings again for months.

Many of the delays at Guantanamo can be traced back to what one of my colleagues recently called its "original sin": the torture of defendants in CIA custody. Had the government simply come clean on these abuses and not tried to cover them up by classifying them as top secret, the FBI probe, the CIA kill-switch episode, and the computer problems on the special high-security network may never have occurred. All of these problems stem from the fact that so much information in the case is classified.

Numerous additional motions related to how the parties should handle classified information in the case have already taken time out of the pre-trial hearings, and other are still pending. Complicating matters is the fact that the U.S. government chose to locate the commissions on a remote U.S. military base, not previously equipped to handle legal proceedings, and accessible only via a three-hour flight. The commissions are also an entirely new court system, with new rules that have virtually zero legal precedent.

The result is that arguably the most important terrorism case in U.S. history is now languishing in limbo more than two years since it began and nearly 13 years since the crime occurred, with a trial date likely years away.

President Barack Obama was right to want to try this case in federal court. Attorney General Eric Holder announced the decision to transfer the case to federal court in 2009 but then delayed moving the defendants to the United States after confronting political opposition. Congress then began to enact a series of restrictions that blocked the administration's ability to use certain funds to transfer the defendants, or any other Guantanamo detainees, to domestic soil. Had the administration made the transfer before Congress began enacting restrictions, this trial would likely be over and done with by now. With over 200 years of legal precedent and experience handling complex cases, U.S. federal courts have prosecuted over 500 terrorism cases since 9/11. Though Human Rights Watch has documented serious problems associated with many of these prosecutions, U.S. federal courts still offer far stronger due process protections than the military commissions. 

Instead, Obama waited until deep into his first term to take any action. His administration then blamed Congress for enacting restrictions that left him no choice but to keep the case in Guantanamo. Obama should work to get those funding restrictions lifted, by, for example, acting on veto threats he has issued, and not bring any further cases before the military commissions, as he has already done. In addition to being painfully slow, the commissions also offer a substandard system of justice that subverts fair trial standards.

President Obama should also end the secrecy over the CIA's detention and interrogation program, the seed of many of these delays and an added obstacle to any semblance of fair process in the commissions. Sens. Dianne Feinstein, chair of the Senate Intelligence Committee, and Carl Levin, chair of the Senate Armed Services Committee, have also recently asked the president to do the same. This would not change the fact that the military commissions are a second-tier, alternative system of justice that should not be used.

But if the administration chooses to go forward with this broken system regardless, at very least it should stop trying to hide its own abuses and perversions of the cases in process.



Step Away, Do Nothing, Pat Self on Back

It looks like the Obama administration has found its grand strategy after all.

Let's get this straight: The Western governments that overthrew Muammar al-Qaddafi but declined to disarm the militia that would predictably wreak havoc in Libya are now condemning the efforts of allied regional governments intervening to stanch the rise of Islamists who are dictating political outcomes contrary to election results. So we are now in favor of continued violent squalor for Libya? Because that is what our policy amounts to. 

Egypt and the United Arab Emirates, two countries that know a little something about the way Islamists can hijack democratic processes and that are directly threatened by fundamentalist parties fomenting violence in frayed political communities, have evidently conducted airstrikes in Libya, in support of the elected government, to degrade the military forces of Islamist militias. These are the very sort of airstrikes we conducted in Libya and are conducting in Iraq. Meanwhile, the United States government, and the governments of Britain, France, Germany, and Italy, issued a statement calling on all Libyan parties to accept a cease-fire and engage "constructively" in the democratic process, "abstaining from confrontational initiatives that risk undermining it."

No doubt this lukewarm missive will deservedly draw exasperated responses from regional governments and the "Arab street," as it exemplifies how we who live in coddled safety condescend to people facing urgent problems. It takes no responsibility for setting in motion the current violence by removing the government without ensuring that its successor had the ability to control its territory. It takes no notice of the fact that the government of Libya is too weak to disarm militias itself. And it offers no appreciation for the American allies willing to commit military force in assistance of the elected Libyan government. 

This is not to defend the repressive domestic policies of either Egypt or the UAE. It is simply to say that if U.S. government strategy is to lead from behind, we have to recruit and reward allies willing to step forward. Libya is urgently in need of such assistance, as are the forces fighting Bashar al-Assad's butchery in Syria and the Islamic State's rampaging barbarism in both Syria and Iraq. It may be morally satisfying to the Obama national security team not to dirty their hands with imperfect allies, but as the novelist George Eliot instructs, "The important work of moving the world forward does not wait to be done by perfect men."

Obama administration officials spent much of the spring and summer trying to position themselves as grand strategists. The president's West Point speech was the test drive of their revised national security strategy. It cautioned that "our most costly mistakes came not from our restraint, but from our willingness to rush into military adventures without thinking through the consequences -- without building international support and legitimacy for our action, without leveling with the American people about the sacrifices required." The speech was panned by both the right and the left, precipitating a reconsideration of releasing the National Security Strategy on which it was based (the last was delivered in 2010); it sounds even more laughably self-satisfied in light of the costly mistakes their "restraint" has occasioned in Libya, Syria, and Iraq.

The White House likes to defend its inaction by reiterating that there are no good options. And that is true, although it is not newly true. Windows of opportunity open and close, as Helmut Kohl famously worried about German unification. Options get better and worse with time and with opportunities taken and missed. But the Obama administration's philosophizing is cold comfort to the people experiencing the consequences of our inaction. We should beware buying another whole generation of mistrust from the people of the Middle East by our callous indifference to their problems and solipsistic attempts to ennoble our inaction. 

If there actually is an Obama Doctrine -- and it's a debatable point, given the contradictions in the administration's policies -- it is this: Step back, criticize others who step forward, and laud our own moral superiority for doing nothing. Meanwhile, Islamist militias have encircled Tripoli and taken control of the airport. The Western governments that signed the statement encouraging a cease-fire are setting Libya up for continued humanitarian catastrophe and themselves up for another rush-to-the-crime-scene intervention. America is not incapable of devising and executing grand strategy. But the Obama administration evidently is.