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August 05, 2019

A Resolution in 9/11 Trial Still Elusive Despite Best Efforts for Justice

By Julia McKay

Last month, I traveled as an NGO observer to the US Naval Station at Guantanamo Bay, Cuba to watch the 37th pretrial hearing in United States vs. Khalid Shaikh Mohammed, et al—the case against the five alleged organizers of the 9/11 terrorist attacks. Judge W. Shane Cohen, who recently replaced Judge Keith Parrella, presided over the proceedings, which focused on access to classified information and alleged government inference with the defense.

However, major flaws inherent in the military commissions thwarted any resolutions.

Throughout the week, the prosecution and the defense argued about access to information regarding the torture of detainees. The defense team for Ammar al Baluchi filed a motion to access diplomatic correspondence in which the American government referred to acts performed by other governments as torture, but the prosecution stated that this was beyond the scope of their discovery obligations and was too burdensome.

Debates over access to evidence relating to treatment of the accused while in the CIA custody have plagued the proceedings for years. In 2015, defendant Ramzi bin al-Shibh identified a defense team interpreter in open court as someone he recognized from his time in CIA black sites. The defense argued that this former interpreter’s appearance on the their staff was part of a pattern of intrusions into their relationships with their clients by government agencies. In 2013, defense lawyers found a listening device in an attorney-client meeting room and recently, the judge ordered an investigation of alleged FBI attempts to question a former paralegal about the defense teams’ legal strategies.

Secrecy surrounding the CIA’s “Rendition, Detention, and Interrogation” program hangs over the proceedings. Last week, the confidential information alarm was triggered twice, cutting off the audio feed to the court observers’ gallery.

When discussing potential dates for going to trial, David Nevin, the death penalty lawyer for Khalid Sheik Mohammad, argued that discussion of torture is essential for a fair trial. He argued that it is impossible to move forward unless the defense is permitted to see the millions of documents pertaining to the CIA’s torture of the detainees.

Judge Cohen said he was committed to finding a balance between the prosecution’s claim of meeting discovery obligations and the defense’s need for more information. He proposed several compromises and said that he would be willing to give the defense more leeway when questioning the witnesses and to reconsider the death penalty if it were necessary to provide the detainees with a fair trial.

In many ways these arguments were a fitting end to a week of intense court proceedings, as they illustrated the core problem with this judicial process. Can the government balance its need to protect national security with its duty to provide a fair trail? Despite earnest efforts for all involved, there was little evidence that the government will take the necessary steps to make a resolution, let alone justice, possible.