The United States is for a second time attempting to prosecute five prisoners held at the Navy base in Guantanamo Bay, Cuba, for planning and aiding the Septemer 11 attacks, charging them with war crimes in a special tribunal for wartime offenses known as a military commission. Here’s an update.
Q: WHO WILL BE ON TRIAL? WHAT ARE THE CHARGES?
A: The main defendant is Khalid Sheikh Mohammed, a self-described terrorist mastermind who came up with the idea of using commercial aircraft to attack the US and set the plan in motion. Mohammed, a Pakistani citizen who grew up in Kuwait and attended college in Greensboro, N.C., has told the US military he was responsible for the September 11 attacks from “A to Z,” as well as about 30 other plots, and said he personally beheaded Wall Street Journal reporter Daniel Pearl.
The four other defendants are all accused of being Mohammed’s underlings and playing more minor roles in the attacks, such as providing money and other assistance to the hijackers.
All five face the same charges, including conspiracy, attacking civilians, terrorism and 2,976 counts of murder in violation of the law of war, one for each official victim of the September 11 attacks at the time the charges were filed. Each of the men could get the death penalty if convicted.
Q: WHAT HAS HAPPENED SO FAR?
A: The five were arraigned in May at the US base in Cuba in a sometimes unruly 13-hour hearing in which the men appeared to make a concerted effort to delay the proceeding by refusing to respond to questions from the military judge or use the court’s translation system to follow the proceedings in Arabic. They didn’t enter a plea, though Mohammed in the past has indicated he wanted to plead guilty.
Since then, prosecutors and defence lawyers have filed dozens of pretrial motions dealing with a wide range of legal issues, such as the rules for handling classified evidence or what clothing the defendants will be allowed to wear in court. The judge must hold pretrial hearings on many of the motions, but those have been delayed by the challenge of scheduling court appearances for all the attorneys and prosecutors involved in the case, a break for Ramadan, and tropical storm Isaac, which forced the military to cancel several days of hearings in August. The government has scheduled another round of pretrial hearings to start October 15.
But there is a long way to go. Many of the unresolved issues are preliminary and defense lawyers say they have not even received much of the evidence against their clients. If this were a football game, they’d still be on the coin toss.
Q: WHY IS IT TAKING SO LONG TO TRY THEM?
A: The men, all of whom were held in secret CIA “black sites” before being taken to Guantanamo in September 2006, were arraigned the first time in June 2008, a process that was delayed by legal challenges to the military commissions. After that first arraignment, the case bogged down in pretrial hearings until the election of President Barack Obama, who put the case on hold while he tried to move the case to a civilian court in the US as part of a broader plan to close the Guantanamo Bay prison.
Members of Congress opposed holding the case in New York City, or anywhere in the US, and blocked the administration from moving any prisoners to the US. So the government sent it back to a military commission system that has since been reformed to address criticism that the tribunals were unfair and would allow the use of evidence tainted by harsh treatment that critics call torture.
Q: WHAT HAPPENS NEXT?
A: There are hundreds of motions to be litigated at pretrial hearings. There’s no trial date. One defence lawyer recently predicted the trial is about four years away. The chief military prosecutor, Army Brig Gen Mark Martins, has said only that it is “many months” off.
If and when there’s a verdict, it must be reviewed and approved by a Pentagon-legal official known as the Convening Authority. Then, the defendants can appeal to the Court of Military Commission Review, followed by the Court of Appeals for the DC Circuit and finally to the Supreme Court. The military has not said how it would carry out any executions.
