After a Decade of Delays, why the Rush for the Gitmo Terror Trial?

This article first appeared on the Just Security site.

Guantanamo Bay Naval Base, Cuba — The military commission proceeding against five detainees allegedly responsible for the September 11 terrorist attacks is slowly inching closer to a trial date at the Guantanamo Bay detention center.

On trial will be: Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ali Abdul Aziz Ali, Ramzi Bin al Shibh, and Mustafa Ahmed Adam al Hawsawi.

The proceedings have been embroiled in extensive pre-trial motions for over a decade.

In a recently declassified government pleading, the chief prosecutor, Brig. Gen. Mark Martins, and his prosecution team, proposed for the trial to commence in 2019, with jury selection requested for early January that year. In the pleading, the government stated that it would take approximately six to eight weeks to present its case.

The prosecution underscored the importance of beginning the long-awaited and repeatedly delayed trial, stating that survivors and victims’ family members have passed away and some are experiencing serious health challenges, causing “despair they will not live to see justice done.” Significantly, this would mean the discovery deadline is in September, just four weeks away.

The defense teams expressed serious concern over the feasibility and fairness of such a deadline given the slow pace of the proceedings, which have taken so long largely due to the classified nature of many of the documents, which the defense team has sought access to.

Extensive classification is necessary a ccording to the prosecution, as “[t]he worldwide pursuit of those who perpetrated the September 11, 2001 attacks required the United States to employ sources and methods of intelligence and counterterrorism that remain sensitive.”

The presiding judge, Army Col. James Pohl, also expressed skepticism last week about the government’s proposal. Specifically, he seemed doubtful of the proposed seven-day-a-week schedule to accommodate the multiple cases being tried in the naval base’s one courtroom.

Such an arrangement would involve a rotation where one case uses the courtroom for four days a week while another runs the remaining three days of the week to avoid two cases utilizing the courtroom in the same day.

The judge doubted the workability of this schedule, particularly regarding the additional infrastructure that would be required to accommodate it. Col. Pohl inquired about the requisite coordination between logistics and the Joint Task Force providing camp guards that will be necessary to enable seven-day-a-week operations.

He stated that, even if the proposed rotating schedule was adopted, the “footprint” of the 9/11 case is potentially “too big.” The government’s plan included an expansion of the current Expeditionary Legal Complex courtroom for November 2018, as, according to the prosecution, there remains a lack of political will to fund construction of an additional courtroom.

Lead defense counsel for Ammar al Baluchi, James Connell, characterized the government’s proposal for an expansion as a “modest plan [that] has been under consideration or underway for quite a substantial period of time” noting that he first learned there would be a new defense office back in 2013 and it still hasn’t been opened.  

He described the infrastructure his defense team is currently operating in as “not as bad as a submarine.” He said, “You know, as it is, we don’t have enough chairs for all team members to sit down at the same time, much less computer workstations.”

Mr. Connell also pointed out in frustration that “in the same argument [the prosecution] represents that the political will does not exist to do the things necessary, which are to make this military commission and its logistical infrastructure run in a reasonable fashion.”  

Judge Pohl made clear to Connell in court that the September discovery deadline will not be adopted, calling into question whether the 2019 proposed start date is likely or even possible. The military commission intends to further discuss the trial scheduling order in October. In short, stay tuned.

Amanda McAllister is a recent graduate of the University of Minnesota Law School.

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