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September 20, 2019

“Rule Man” Judge Cohen Gives New Focus to 9/11 Hearings

By Christine Coogle

Last week, I traveled to Guantanamo Bay Naval Base to observe the first week of the 38th round of pretrial military commission hearings in the case against the five alleged masterminds of the 9/11 attacks. These were the first hearings to occur since Judge W. Shane Cohen set a January 2021 start date for the trial. Judge Cohen, who recently replaced Judge Keith Parrella, is the third judge to preside over these hearings, and the first to set a trial date.

Judge Cohen did not shy away from addressing the difficulties facing him and the parties to the case. Those difficulties include both inherent flaws in the military commissions and questions about rulings and standards in this particular case. At the same time, Judge Cohen repeatedly emphasized his determination to hold as fair a trial as possible, for all parties.

On Wednesday, the eighteenth anniversary of the 9/11 attacks, Judge Cohen squarely acknowledged the weight of his task, especially as he must“sit in judgment in many instances of [his] own country and its actions.” He began the second unclassified hearing of the week by opining on “a few guiding principles.” His speech centered on his commitment to integrity; he emphatically stated that the parties can trust that he means what he says, and he promised to be forthright and respectful. He added that holding a trial that is fair to all parties is his “first and foremost responsibility,” and he will carry out that responsibility by grounding himself in the rules.

To those of us not privy to the content of the previous day’s classified hearing, it was unclear what prompted this speech defending his integrity and dedication to the rules. But his points may have influenced the litigators’ strategy that day: the remainder of the hearing was peppered with explicit references to the applicable rules and even one reference to the judge as a “rule man.”

In many ways, however, it is the very lack of clarity on the commission’s rules and standards that have caused the pretrial hearings to drag on for so many years—since 2012, to be exact. For example, this week counsel argued whether two previous judges’ rulings on a particular standard could coexist. This caused disagreement among defense counsel and raised the question of whether the commission even has jurisdiction to hear the case. Counsel also argued about whether defendants should be allowed to look at evidence regarding the selection and hiring of the convening authority, Rear Admiral Christian Reismeier, who manages the military commission. This evidence is crucial for the defense because it could support a motion to disqualify the convening authority based on alleged close ties to the prosecution. 

U.S. federal courts have resolved hundreds of terrorism-related cases since the 9/11 attacks. In contrast, the 9/11 military commission has spent years bogged down in fights over the rules, access to evidence, and government misconduct. Many have thus dismissed the January 2021 trial date as unrealistic. Some expressed hoped, however, that with Judge Cohen’s new focus, progress will be finally made toward the start of the trial.

In any case, it’s clear that the commission has a long way to go before trial, and it remains to be seen whether Judge Cohen’s desire to make progress, while ensuring a fair trial for all, will be realized. The judge thanked the counsel for being “well prepared” and “very helpful” to him in their arguments this week, but he acknowledged that the length of the admissibility hearings in particular may cause the trial date to be pushed off.