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December 15, 2017

Justice Denied: The Choices Still Haunting the 9/11 Case

“If our government wants the most important criminal cases in American history to be tried by military commission, it is essential that the proceedings live up to the highest standards of American justice. They have not. Instead, they leave behind a legacy of uncertainty, government misconduct, and torture. This is a gross injustice being done to the individuals charged in the system, but it is also more than that—it is, as Justice Jackson recognized, a matter of national security and integrity as well. “

-Brigadier General John Baker, Chief Defense Counsel, Military Commissions Defense Organization, Sept. 14, 2016 

Sixteen years after 9/11, the case against the men accused of planning the attacks seems no closer to trial. I went down to Guantanamo to watch the 26th session of pretrial hearings in the 9/11 case, and I met a system plagued by perennial problems, including the prospect that the court has no jurisdiction to try the accused individuals.

Meanwhile, the specter of torture threatens to derail the case and may compromise the government’s ability to secure the death penalty. Forty-one men continue to languish in detention, but only ten have been charged with any crimes, and only seven are scheduled to face trial.

Defense teams for the five accused 9/11 co-conspirators argue that the military commissions don’t have the legal authority to prosecute their clients. They say that for the commissions to have jurisdiction in this case, the government must demonstrate that on 9/11, the United States was in an armed conflict with al Qaeda.

Professor Sean Watts, an expert on the laws of war who has taught Army Judge Advocate General officers at West Point, explained to the court that “armed conflict” is a legal term of art. Under international law, sporadic exchanges of attacks—however destructive—might not qualify as an armed conflict. If the relationship between the United States and al Qaeda did not rise to the level of an armed conflict until after 9/11, then the commission can’t try the case.

Federal courts, of course, could still bring these men to justice, but the government has been reluctant to try this case in the civilian system, despite more than 620 successful terrorism-related convictions in civilian courts since 9/11.

Each of the five men accused in the 9/11 case was tortured, according to the Senate Select Committee on Intelligence’s report on the CIA’s detention and interrogation program, and their torture continues to affect the proceedings. Statements derived from torture are generally not admissible, and torture may compromise the ability of prosecutors to secure the death penalty.

Last week, a former FBI special agent revealed that when she interrogated one of the accused—Mustafa al Hawsawi—upon his arrival at Guantanamo in 2006, he said he recognized his surroundings, suggesting the CIA may have tortured him there before transferring him to military custody. Previously, another defendant recognized a commissions court translator from the CIA black site at which he was tortured. To make matters worse, the U.N. Special Rapporteur on Torture recently reported that torture may still be happening at Guantanamo.

But last week, torture was not the only issue at the military commissions. Three of the five defense teams alerted Judge James Pohl that they were laboring under a conflict of interest compromising their ability to represent their clients—an especially grave problem when a death sentence is on the line. The lawyers stand accused of “willful” dissemination of classified materials, though the responsible parties have presented proof that any “spill” was inadvertent. Because their positions require top-secret security clearances, they could lose their jobs.

When Judge Pohl confronted the question of whether to appoint independent counsel for the defendants until the conflict of interest could be resolved, he ran up against the same problem that derailed the commissions case against Abd al Rahim al Nashiri. Any new lawyer would have to be a specialist in the death penalty, because every issue in a death penalty case swings toward or away from the ultimate punishment. Nashiri has been without a death penalty lawyer for months because of a separate conflict involving government spying on attorney-client conversations.

In light of the conflict in the 9/11 case, the next session of pre-trial hearings, scheduled for January 2018, may not proceed. While the court decides whether it has the authority to hear the 9/11 case, the families of victims await much-delayed justice. An observer can’t help but wonder how different this justice might look had torture never entered the picture.