Last week, I traveled to Guantanamo Bay, Cuba, to observe pre-trial proceedings in the military commission’s case against five men accused of committing the atrocities of Sept. 11, 2001 that resulted in the deaths of 2,976 men, women, and children.
As a former federal prosecutor, deputy assistant attorney general in the Criminal Division of the Department of Justice and, for a brief time, defense attorney, I wanted to observe in person what I had only read about in news accounts.
This has been a long and complex case — arguably the most complex case to be presented in any forum (be it a military commission or a state or federal court) in our nation’s history —so one can’t draw definitive conclusions from observing it for only a week. But Brig. Gen. Mark Martins, the chief prosecutor who is seeking the death penalty, said the case against Khalid Sheikh Mohammad, the alleged mastermind of the plot, and four others is making “continued modest progress.”
According to Martins, the government has provided the defense with more than 295,000 pages of unclassified information as part of the discovery process and offered to turn over another 7,000 pages of classified information. But a legal dispute over terms of a protective order and a proposed “memorandum of understanding” which the government has insisted the defense attorneys sign has resulted in only one of the five attorneys receiving a portion of this discovery material to date. As with all other issues, this is being heavily litigated. Indeed, the parties have already filed more than 100 motions, many of which have been argued (and argued and argued) before the military commission’s judge, Army Colonel Judge James L. Pohl.
These pretrial proceedings do not take place very often. This is because there is only one courtroom, which also is being used for the case against Abd al-Rahim al-Nashiri, the alleged bomber of the USS Cole, and the recently filed case against Abd al Hadi al-Iraqi, who is alleged to have served as a senior liaison between the Taliban and various al Qaida-affiliated groups and to have commanded al Qaida’s insurgency efforts in Afghanistan, Pakistan and Iraq.
Until recently, Judge Pohl also was overseeing the al-Nashiri case, but that case has been reassigned to another judge. Logistics also are a problem … so much so that week-long pretrial proceedings in the 9/11 case take place only once every couple of months.
So what happened last week? Not much, and that’s a problem.
Although there were a slew of outstanding motions listed at the beginning of the week for the court’s consideration, the court met only three times, for six to seven hours total.
The judge resolved just one of the motions—agreeing with a government request to reconsider his previous decision to sever the trial of one of the co-defendants: Ramzi bin al-Shibh.
bin al-Shibh had not sought a severance, although in a pleading filed last week bin al-Shibh expressed his acquiescence with proceeding via a separate trial.
The judge, however, had become concerned that things had bogged down considerably since December because of issues related to bin al-Shibh, which is true.
The government, rather than bin al Shibh’s attorney, has raised the issue of bin al-Shibh’s competency based on several courtroom outbursts and his claim that he has been subjected to loud noises and vibrations in his cell, which the government denies.
There also have been issues related to possible conflicts of interest—also raised by three other defendants—emanating from an ill-advised and heavy-handed FBI investigation into a possible leak of classified information by an investigator on bin al-Shibh’s defense team that led to inquiries about members of the other defense teams as well.
Regarding the severance issue, the government argued the law generally favors trying defendants together if they have been “properly joined” through the allegation of jointly undertaken actions. To do otherwise, the prosecutors argued, would be time-consuming, inefficient and could result in undue hardship to the victims’ families.
The government also argued the delays related to bin al-Shibh have been reasonable and have not resulted in prejudice to any of the defendants—and that any remaining issues should not take much longer to resolve. For now anyway, the judge has decided to proceed with all five co-defendants together. A couple of other issues were argued, but nothing else was decided.
Judge Pohl is an experienced and intelligent military judge, who handled the court martial proceedings in the Abu Ghraib scandal and some of the preliminary proceedings in Ft. Hood shooter Nidal Malik Hasan’s case. But he is quite slow to rule on issues. He lets attorneys argue, orally and in writing, until they appear to run out of things to say. The judge then takes matters under advisement and it is quite a while before he issues rulings, which invariably incites a slew of new motions and arguments seeking reconsideration. The defense attorneys talk about how unfair they think the whole process is and use the word “torture” as many times as they can both in and out of court, and the prosecutors stick to discussing other matters.
Yes, some of the legal issues before the court are complex and involve classified information, but none raised before and during the week I spent at Guantanamo Bay warranted such delays. It also was obvious that the failure to resolve issues quickly affects and infects issues that arise later on, which only compounds the problem. Too many repetitive arguments. Too much downtime. It was frustrating and unnecessary, in my view.
A trial date has not been set for the 9/11 defendants (the al-Nashiri trial is scheduled to go first), but it is unlikely to occur until at least late 2015, and, based on what I have observed last week, probably later than that.
During the press conference at the end of the week, General Martins said that “Justice has no timeline.” He is right about that. Nonetheless, a little less hesitancy by Judge Pohl in addressing outstanding legal issues would help a lot in moving these proceedings along.
Everybody—the defendants, the government, and the victims’ families—wants the trial process to be fair. That will be difficult but achievable. It is also, however, in everybody’s interests that the trial not be unduly delayed.