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July 01, 2019

New “Process-Person” Judge Faces Old Problems in 9/11 Case

By Becca Brunty

June 15th was the first day on the job for the new judge in the 9/11 military commission case, which, eighteen years after the attacks, is still in its pretrial stage. Air Force Colonel W. Shane Cohen, the third judge since 2012, has never before presided over a death penalty case or handled multiple defendants at once. His first week of hearings revisited perennial issues, including the inadequacies of public access to the military commissions and how the new judge should balance national security classification with due process.

With Khalid Sheik Mohammed and the four other defendants all present on his first day, Judge Cohen described himself as a “process person” who believes that his role is to ensure a fair process for both the prosecution and the defense, no matter the outcome. However, in the days that followed it became clear that there is no clear “process” to follow in the military commission system. In open proceedings from Wednesday to Friday, Judge Cohen heard several motions with years of nuanced history and hundreds of filings. At times, he heard six opposing views—one from each defense team and one from the prosecution—on how he should proceed.

For example, court on Wednesday began with the prosecution’s motion to allow the public to view the proceedings from the Pentagon via video feed. The defense did not oppose adding the Pentagon to the list of public viewing sites, but instead pushed for more locations, where the public could have easier access (as opposed to the Pentagon, where security protocols are strict). Accessing the current viewing sites is very difficult, and most Americans don’t even know they exist. Lieutenant Colonel Sterling Thomas, defense counsel for Ammar al Baluchi, explained that a Pentagon viewing site would not fix the core problem of the lack of public access, stating that “if justice can’t be seen, can you be sure it’s justice at all?” However, Judge Cohen was unsure of his legal authority to do more than encourage the government to increase the number of alternative viewing sites.

Thursday’s session featured a heated discussion of the defense team’s access to discovery, or the gathering of evidence, an issue with a long history of motions and decisions spanning back years. In a death penalty case, it is especially important that defense counsel is able to access any evidence that may exonerate their clients or mitigate the ultimate sentence. In the 9/11 case, the prosecution has access to evidence that the defense has been denied. Each defense team claims it is owed more evidence than it has received in discovery, but the government continues to refuse many requests for access to evidence on the grounds of “national security privilege.”

Judge Cohen wrapped up the open court sessions on Friday with plans to create a calendar that would set a schedule for discovery in the hopes of moving the pre-trial motions along. There is still no trial date set.

The Bush administration first tried to prosecute these five detainees through the military commissions in 2008. Eleven years and several judges later, this new judge is facing the same chronic issues that plague the military commission system. Despite Judge Cohen’s best intentions, history tells us that justice through the military commissions is a long way off, if attainable at all.