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April 12, 2017

Time Runs Out: Minor Charges Dropped in 9/11 Case

By Camille Marrero

The clock is ticking. Although the memory of the 9/11 attacks remains vivid in the minds of many Americans, it has already been more than 15 years since they took place. Last week a military judge dismissed two of the charges against the five defendants because the statute of limitations—five years since the time of the crime—had expired. In other words, the time the U.S. government had to bring these charges ran out.

The dropped charges—attacking civilian objects and destruction of property in violation of the law of war—carried a minor penalty in comparison to the other charges. Still, their dismissal reflects the U.S. government’s agonizingly slow and dysfunctional effort to secure justice.

The defense argued that this period expired just after the five defendants were transferred from the secret CIA prisons to Gitmo. On the other hand, the prosecution argued that the statute of limitations doesn’t apply to war crimes. The decision to dismiss the charges can be appealed, although it is unclear whether the prosecution plans to do so.

It’s hard to believe there’s been no accountability for the attacks that claimed the lives of nearly three thousand people in 2001. The case has been in the pretrial stage for five years and isn’t expected to go to trial until 2021 at the earliest. Many of the delays have been caused by the uncertainty over the rules of the military commissions. Even the military judges seem to be exploring the boundaries of their authority to grant requests, issue orders, and conduct the proceedings. This uncertainty causes confusion and leads to constant arguments over issues that may seem trivial but are, in fact, fundamental and critical to bringing the alleged perpetrators to justice.

Logistical problems add to the delays. For example, the lawyers, support staff, translators and observers are flown to Cuba at the expense of the government. There is only one courtroom used for all the cases, which results in big gaps between each hearing. Imagine how complicated it will get once the case goes to trial and a jury joins the mix.

Given all that, it’s not surprising that the military commissions have completed only eight cases while federal courts in the United States have completed more than 550 terrorism related prosecutions since 9/11. Equally concerning is the fact that three of the eight cases tried by military commissions were completely overturned and another was partially overturned because of fundamental legal problems.

It is especially disconcerting to think that the clock on bringing these charges was ticking while the five detainees were being subjected to enhanced interrogation techniques at the secret CIA prisons. The obstacles to the U.S. government’s ability to bring the alleged perpetrators to justice could have been avoided if the defendants had been apprehended according to federal law, interrogated lawfully, and charged in a federal district court where the rules are clearly defined.

Time is of the essence in counterterrorism efforts and a big part of that is holding people who engage in terrorist activities accountable. Going forward we urge President Trump to follow established federal civilian law rather than creating special interrogation and detention procedures, which obstruct the U.S. government’s ability to get a verdict. Tick-tock.