It was a sunny morning, and I had arrived at my law school early and happy to do so. I had developed a blister where my new loafers were rubbing the back of my heel, and I knew that I had bandages somewhere buried in my desk. I never sit when I lectured — but pace and step on and off the lecture platform. No bandages found. My thought as I grabbed my lecture notes was: This I don’t need. The date was 9/11.

As I walked into the classroom a bit before 9 AM, one of my law students, a highly decorated army officer, waved me over to his seat, in our amphitheater type classrooms, and pointed to the screen of his army issues laptop. What I saw was startling. “What’s happened?” he asked. I told him: “We’ve been attacked.”
That happened 19 years ago and killed 2,976 people in New York, Pennsylvania and Arlington, Va. Although there are no percolating headlines today, that event still occupies the time and close attention of many people. A trial of the captured, suspected masterminds of the attack has yet to take place, and an overwhelming portion of the population has long since forgotten about these defendants. We mark the date of the event and move on. In France, they marked the date of the horrific attack on a satirical magazine and kosher supermarket that roiled Paris and the Country in 2015 by going to trial.

On the 18th anniversary of the 9/11 attack, some two dozen relatives of those who had died in the attack attended a solemn meeting with President Trump in the formal Blue Room of the White House. After each family had a hushed individual moment with the President and the First Lady, the families pointedly asked the President to release sealed documents, tightly held within the possession of the F.B.I., of their very comprehensive investigation into attack. Significantly, the Justice Department has continually refused to reveal that information under the last two presidents—one a Republican and one a Democrat. This time, the request was embraced and articulated as a desperate “need for closure”…they had “waited long enough”. They needed to know the truth. Some of the relatives reminded Trump that Presidents Bush and Obama blocked them from seeing the files, as did some of the F.B.I. bureaucrats Trump so reviled and openly detested. The visitors did not mention, and was reported by those covering the event, that they hoped to use the documents in a current federal lawsuit that accuses the Kingdom of Saudi Arabia — an American ally that has grown suspiciously closer under Trump — of complicity in the attacks. The President, it was reported and recorded said: “It’s done.” The families were later informed that the President had directed the attorney general to release the name of a Saudi diplomat who was linked to the 9/11 plot. Justice Department attorneys revealed the Saudi official’s name in a protected court filing that could be read only by lawyers for the plaintiffs. Unfortunately, as was reported in the back pages of the press, the AG toppled the families’ hopes: in a statement to the court, the AG insisted that other documents that might be relevant to the case had to be protected as state secrets. Their disclosure, he wrote, risked “significant harm to the national security.” An overused and abused “legal phase” employed by the Government to hide so-called important and relevant information.
A little over a year ago, and for the first time, a U.S. military court judge in Guantánamo Bay, Cuba, set a trial date for Khalid Sheikh Mohammed and the other four men charged with plotting the terrorist attacks of Sept. 11, 2001.

Judge W. Shane Cohen, an Air Force colonel, said the trial should begin on Jan. 11, 2021, though a number of other procedural deadlines would need to be met for the long-awaited trial to attempt to lurch forward.

Beginning in May of 2012, with any new military criminal charges, new laws were adopted. War crimes defendants were to be provided the same protections offered in national security trials in federal court. Due process now requires that the government turn over all evidence normally required to criminal defense attorneys. Lawyers for the 9/11 five terrorist defendants say prosecutors have not been totally forthcoming. That claim is not uncommon.

Many trial experts have suggested that the scheduled trial date is unrealistic, and they say Guantánamo isn’t physically ready or convenient for a trial of that scale or magnitude. Prosecutors, it’s claimed, have been asking for a trial date for several years and say that finally scheduling one will motivate all parties. At this writing there is a hearing scheduled for this month at a date that has not been released, at which time it has been signaled that the defense attorneys will argue that the confessions obtained by the government are tainted and inadmissible because of the harsh interrogations conducted by the CIA during the early stages of detention. The stakes in the upcoming trail are obviously high for the defendants. The defendants are charged with war crimes that are punishable by death, for their alleged role in helping the airline hijackers in executing the attack.

Fascinating, and I had no idea until I started to research this topic, that the alleged mastermind defendant in this case, Khalid Shaikh Mohammed had also has been linked to the 1993 World Trade Center bombing, the murder of journalist Daniel Pearl in 2002, and the 2003 Jakarta Marriott bombing, as well as other attacks by the al-Qaida network. This man is not new to his profession.

You might remember, if you lived in New York City, the uproar during the opening days of the Obama Administration, when he announced that he will fulfill his promise that he would close the infamous Guantanamo base and suspend military trials. The AG then decided to move the trial of these defendants to federal court house in Foley Square in Manhattan. The public and local government reaction was nothing less than a firestorm of protests. The trial would “put a terrorist target on New York City”, and there would not be any vehicular traffic because it would all come to a halt in downtown Manhattan. The headlines were relentless until that idea was quietly abandoned.

Some important background to why this case has taken so long to come to trial and has complicated the prosecutions difficulty in mounting its case: the defendants, after their captures in Pakistan in 2002 and 2003 were held out of the States and of reach by the courts for years in the belief (hope) that they might, if pressured sufficiently (tortured?), have information that could stop another attack and help interrupt the work of the Qaeda terrorist network. To accomplish that, they were sent to secret networks of prisons run overseas by the C.I.A. Some claim, in their reporting that the C.I.A’s intent was to never to bring them to trial, but to forestall and disrupt any further terrorists attacks. Obviously, that was a strategy that never was going to work, and only increased the demands for a trial that would reveal, in the normal course of events, the C.I.A’s illegal methods of interrogation. It took five years for President George W. Bush to order that the defendants be transferred to Guantanamo for trial. During that time the defendants were held incommunicado. Mohammed was water boarded 183 times. It was alleged that the five defendants were “brutalized, isolated and kept incommunicado.” For years into their custody, the defendants were denied contact with any attorneys, and it took five years after their capture to formally charge the defendants in a death penalty case. In the interim, there have been a revolving number of military judges and defenses counselors, each being subject to in-depth security clearance.
Two important points come to mind: Because of the years spent in custody without benefit of council, aside from the claim of “torture”, the admissibility of the evidence the C.I.A collected is placed in serious jeopardy. Second, and unlike the “traditional” criminal trial in state and federal courts, a military judge in a national security case cannot direct the government to disclose information requested by the defendants. The only option, if the government refuses to divulge the information demanded, is to suspend the trial until such time the government complies or in the alternative dismiss the case. In the first instance to place the trial on hold waiting for the government to respond is useless, and the stonewalling could go on indefinitely. Second, if the military court were to dismiss all charges because of the government’s rejection of an information demand, there would be a national outcry that could not be contained.

Each year the names of those who were killed on 9/11 are read aloud. Each year I remember where I was; I remember a person– a friend of a friend who died; I remember a person who took the wrong train to work, arrived late and ran as the buildings came down around her. Will these trials, if they ever take place, change anything in the lives of the persons in the street? You and me. I doubt that very much. The date will be remembered. And that’s about all. To the legal historian, the review of these events might make a good case history or maybe a seminar course at a law school. I still look up in the sky when a plane flies close over the city. To most: it’s just a date.

Richard Allan
The Editor.

Categories: Commentary


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