7-9-2013By Daphne Eviatar
Law & Security
Talk about chutzpah. In a motion unsealed this week in the case of the five co-defendants accused of masterminding the September 11, 2001 terrorist attacks, prosecutors have told the judge he’s moving the case along too slowly and needs to speed things up.
“The current practice of being in court for five days approximately every six weeks is inefficient and will result in litigation that is unnecessarily prolonged, and does not serve the interests of justice,” wrote Brig. Gen. Marks Martins, the lead prosecutor in the case.
General Martins didn’t mention that the government waited a decade even to file the latest set of charges against Khalid Sheikh Mohammed and his alleged co-conspirators — and then chose to bring the case on a remote military base in Cuba, where the public can never see it. Lawyers, judges, witnesses and translators have to be specially flown to the courtroom at Guantanamo Bay on U.S. military planes simply to attend a hearing. Meanwhile, defense lawyers had to wait months to get the necessary security clearances for their experts to even speak with their clients. And just this year defense lawyers learned that the rooms in which they’d been allowed to meet with their clients were all wired for surveillance. Because attorneys are ethically obliged to protect the confidentiality of their communications with their clients, that discovery caused yet more delays.
It’s hard to believe General Martins doesn’t see the irony in his latest move blaming Col. James Pohl, the military judge presiding over the case, for the delays in completing it. But then, much of what’s occurred at the Guantanamo Bay military commissions has risen to the level of the absurd. Holding the case at Guantanamo helps the government hide that.
The arraignment of the five defendants, for example, took a full 13 hours, because the men not only refused to cooperate, but spontaneously dropped to the floor to pray in the courtroom, and Khalid Sheikh Mohammed fashioned paper airplanes that he balanced on his lawyer’s microphone.
Needless to say, no defendant accused of the mass murder of nearly 3000 people would have been able to get away with that in a U.S. federal court. But because there are no clear rules or precedent guiding this third incarnation of the Guantanamo military commissions, the judge frequently seems baffled at how to handle this extraordinarily complex international terrorism case. (Like most military judges, Judge Pohl has spent his career presiding over military courts martial, which usually involve charges against U.S. soldiers for relatively simple crimes or disciplinary infractions.)
Pre-trial hearings have been going on for more than a year now in the September 11 case, addressing such questions as whether the defendants will be allowed to talk about their experiences of having been tortured during CIA interrogations. But most Americans don’t even know these hearings are even happening.
Meanwhile, millions of Americans are now transfixed by the trial of George Zimmerman, the man who killed Trayvon Martin last year in what he claims was self-defense. The live broadcast on CNN presents an education in the American justice system. Millions of viewers can see how each side presents its case, listen to the witnesses and evaluate their credibility and the strength of the evidence for themselves. Given the public importance of this racially-charged case, public viewing can go a long way toward helping people understand what really happened, and whether justice is truly being done.
But when it comes to the trial of the suspected perpetrators of the most deadly terrorist attack ever on U.S. soil, ordinary Americans won’t have the opportunity to see any of it. Instead, only a select number of reporters, human rights organizations and family members of the victims will be allowed to attend. The American public will hear whatever those watching decide to report back.
General Martins’ complaints about delays in the 9/11 case only underscore what a bad idea it was for the government to prosecute this case in an offshore military commission. That, not the judge’s schedule, is the real reason it’s all taking so long.