Washington: Moving toward a final reckoning as the US approaches the 20th anniversary of the day that led to the longest war in US history, a military judge Friday set a date for the death penalty trial at Guantanamo Bay of the five men accused of plotting the September 11, 2001, attacks.
The judge, Col. W. Shane Cohen of the Air Force, set January 11, 2021, for the start of the selection of a military jury at Camp Justice, the war court compound at the Navy base in Cuba. It is the first time that a judge in the case actually set a start-of-trial date.
The case against Khalid Sheikh Mohammed and four other men, should it proceed, would be the definitive trial tied to the September 11 attacks. Up until now, only foot soldiers of Al Qaida have been tried at Guantanamo, and many of their convictions have been overturned.
Mohammed and the four others face the death penalty in a conspiracy case that describes Mohammed as the architect of the plot in which 19 men hijacked four commercial passenger planes and slammed two of them into the World Trade Centre towers and one into the Pentagon. The fourth, which was believed to be aimed for the Capitol, crashed into a Pennsylvania field instead. The other four men are described as helping the hijackers with training, travel or finances.
The charge sheets lists the names of the 2,976 people who died in the attacks.
“We’ve been wanting a date for a very long time,” said Terry Strada, whose husband, Tom, a corporate bond broker and partner with Cantor Fitzgerald, was killed in the World Trade Centre. “This is good news. I certainly hope nothing will happen between now and then to change this. The families have suffered long enough.”
Kathleen Vigiano, whose husband, Joseph Vigiano, a New York police detective, and brother-in-law, John Vigiano Jr., a New York firefighter, were both killed at the World Trade Centre, said she was relieved after the years of delay. “People say, this is still going on?” she said. “No, it hasn’t started yet.”
The delay is in part a reflection of the difficulty the military has had in carrying out prosecutions in a judicial system that was created in response to the September 11 attacks.
It is still unclear if the trial will actually occur. A judge has yet to rule on whether crucial FBI agents’ descriptions of the defendants’ confessions are admissible because the defendants were tortured in CIA prisons. Defence lawyers have said they will go to federal court closer to the trial start date to try to stop the proceedings.
Another outstanding issue is the need for MRI scans of the five defendants to see if they suffered brain or other physical damage from torture. Defence lawyers might use the MRIs to argue against the men’s executions if they are convicted.
Guantanamo itself is not yet ready for a trial that is expected to last as long as nine months. A judge has ordered prosecutors to give him written updates throughout 2020 on how the government will provide work spaces, lodging and food for trial participants, including the judge and his staff, the jury, lawyers, paralegals, court reporters, translators and reporters at a small Navy base of about 6,000 residents in southeast Cuba. He has also ordered a plan for how to sequester the military jury and how to get participants on and off the island during judicially approved breaks in the trial. For now, reporters and other observers live in tents.
The war crimes trial by military commissions — a hybrid of federal and military courts — will be held in a special courtroom allowing people sitting behind the court in a spectator’s gallery to watch live. But because it is a national security case with the potential to inadvertently make public classified information, the proceedings will be heard on a 40-second delay. Some of the tens of thousands of people who are victims or relatives of the September 11 victims will also be able to watch the proceedings through video broadcast to military bases in New York, Massachusetts and Maryland.
For now, the general public would be able to see the live proceedings only through a video feed shown at Fort Meade, Maryland.
If the 2021 start date holds, jury selection would start eight months before the 20th anniversary of the September 11 attacks.
Besides Mohammed, two of the other men charged are Waleed Mohammed Bin Attash and Ramzi Binalshibh, described as deputies in carrying out the attacks. Prosecutors say Binalshibh organised a cell of hijackers in Hamburg, Germany. The final two men charged are Ammar al-Baluchi, Mohammed’s nephew, and Mustafa al Hawsawi.
All five were arraigned in May 2012. Since then, judges have held more than 30 pretrial hearing sessions to work out questions of law and evidence that would apply at the trial.
In July, a prosecutor, Ed Ryan, urged the judge to set a date saying, “Our client, this nation, deserves a reckoning.”
In a lengthy exchange with the judge, Ryan argued that “dates energise and mobilise” people to prepare.
On Friday, defence lawyers on the case said that many of the judge’s milestones toward trial were dependent on the prosecution meeting a series of deadlines.
“For a January 2021 trial date to happen, the government would have to drop its obstructionism and produce a lot of important evidence and witnesses,” said James G. Connell III, lead defence counsel for al-Baluchi. Connell said he had received more than 25,000 pages of case-related documents since July and expected that many more were coming.
Selection of the jury — 12 members and four alternate members — is expected to last months, with American military officers shuttled by air to and from the base in groups, because of the limited housing at Guantanamo.
Besides conspiracy, the men are charged with committing murder in violation of the law of war, attacking civilians and terrorism. Should the men be convicted and sentenced to death, it is up to the secretary of defence to determine the method of execution.