The Guantanamo Military Commissions and When the War Began

The case against accused 9/11 mastermind Khalid Sheik Mohammed and his four co-defendants should be the trial of the century. Nearly 3,000 people were killed in the attacks—the largest loss of life from a foreign attack in U.S. history.

Yet many Americans are largely unaware of the trial, which is currently limping through pretrial proceedings that started in May 2012. When I visited Guantanamo earlier this month, one of my fellow observers remarked that friends of his thought the whole trial was long over—that Camp 7, where the defendants and 10 other high-value detainees are held, “is their home.”

While Camp 7 may have been their home for over 10 years, the military commission proceedings are very far from over. Judge James Pohl has scheduled another 20 weeks of pretrial hearings for 2018. And the earliest any defense team projects a trial start date is 2020.

The week’s most anticipated event was testimony scheduled for Friday from Abu Zubaydah, the first detainee subjected to the CIA’s interrogation and torture program. Zubaydah was to testify in support of defendant Ramzi bin al Shibh’s claim that there are sounds and vibrations in the cells at Camp 7, disrupting bin al Shibh’s sleep at night. However, as happened nearly a year ago when he was first due to testify, Zubaydah did not make it to the stand.

According to Zubaydah’s military lawyer, Commander Patrick Flor, “It was going to be a one-sided proceeding.” Zubaydah was prohibited from testifying about his treatment in CIA custody, while the prosecution had been given permission to show incriminating evidence of him—excerpts from his diary and a video where Zubaydah praised the 9/11 attacks. “The purpose of his testimony was to be able to testify about the torture,” said Flor. With that off the table, “There was really nothing beneficial from his testifying.”

Without Zubaydah’s appearance, the week’s most prominent episode was the two-day argument from defense counsel challenging whether the military commissions had the authority to try the defendants at all.

Major Joseph Wilkinson, representing defendant Mustafa al Hawsawi, noted that the military commissions could only try war crimes, which necessarily must be committed during war. Wilkinson said that the United States was not at war on 9/11. As such, he argued, the commissions were simply the wrong venue to try the 9/11 defendants.

Wilkinson asserted that under the laws of war, before a conflict with a non-state group like al Qaeda is considered a “war,” the parties must be engaged in “protracted” fighting, not “sporadic” acts of violence. Wilkinson contended that the “sporadic” al Qaeda attacks and U.S.  responses to those attacks before 9/11 were not sufficient to constitute a war. Rather, as the Hawsawi team separately told observers, the war began some time after the United States commenced Operation Enduring Freedom in Afghanistan, in October 2001.

This does not mean that the defendants could escape prosecution. Rather, Wilkinson argued that the defendants should be charged in U.S. federal court, where over 550 individuals have been convicted of terrorism-related offenses since 9/11. As Wilkinson noted, the alleged “20th hijacker,” Zacharias Moussaoui, was convicted in federal court in 2006 and is currently serving a life sentence in U.S. federal prison.

In response, Prosecutor Clay Trivett argued that the Military Commissions Act of 2009 gave the commission jurisdiction over the case, noting that it expressly applied to offenses “committed before, on, or after September 11, 2001.”  Wilkinson replied that such an interpretation would be unconstitutional. “[Congress] may have wished that the result of doing this would be trial and conviction for this particular case … But if they intended to stay inside constitutional and international law and doing that forbids a trial of this case, then carrying out their intent doesn’t carry out their individual wishes.”

In a related argument, James Connell and Alka Pradhan, representing defendant Amar al Baluchi, sought to dismiss three of the charged offenses—conspiracy, terrorism, and hijacking—arguing that these were not war crimes on 9/11. Charging these offenses, they asserted, would violate the Constitution’s ex post facto clause, which prohibits retroactively criminalizing conduct that was not a chargeable offense when performed.

Pradhan referred to supporting affidavits submitted by Professor of International Law Marco Sassòli and former U.S. Ambassador at Large for War Crimes Issues David Scheffer.  Pradhan noted that Scheffer’s declaration referred to the military commission’s charge sheet as “sloppy,” and called including terrorism charges akin to “trying to fit the square peg of terrorism into the circular hole of the law of war.”

Chief Prosecutor Brigadier-General Mark Martins maintained that conspiracy, terrorism, and hijacking were offenses under what he called the “U.S. common law of war.” To be dismissed, Martins argued, these three charges would need to clearly violate the Constitution. Martins said this was not the case and cited to prior U.S. cases where he asserted similar offenses were charged.

Wilkinson countered, “There is no such separate body of law” called the “U.S. common law of war.” Rather, the common law of war “is a type of international law” that “must line up with a general practice among other nations.” If U.S. practice does not line up this general practice, he argued, this would render the United States “out of step” with the law of war.

Seven family members of victims of the 9/11 attacks attended the week’s hearings. At the closing press conference, several expressed frustration with the slow pace of the case. Stephen Hagis, whose son was killed in the twin towers, said: “I just want justice done,” adding, “Before I leave this world I would like to see this resolved.” Rosemary Dillard, whose husband was killed on American Airlines Flight 77, said she had attended the federal court trial of Zacharias Moussaoui. “I just want them found guilty,” she said.

Chances of the trial beginning any time soon remain slim. Pretrial motions aside, resources are stretched at Guantanamo, where only one courtroom is used for the three cases currently before the commissions. Noting that all three have 20 weeks of hearings scheduled in 2018, Judge Pohl expressed his frustration to the prosecution: “This case will not become a night court.”

Transferring the case to federal court would significantly speed up the process. This would also resolve the jurisdictional issues that were argued last week, as federal courts are not limited to only violations of the laws of war. Indeed, the U.S. government once considered federal court to be the proper venue for the 9/11 defendants, indicting them in the Southern District of New York in November, 2009.

However, Congress promptly passed a law banning any transfers from Guantanamo to the United States, effectively prohibiting a federal court trial. That law is part of the National Defense Authorization Act (NDAA), which is up for reconsideration next month in Congress. President Trump has been emphatic that he is tough on terrorism. But the NDAA’s de facto ban on trying anyone held at Guantanamo in federal court robs the government of the important tool of a credible and efficient criminal prosecution in countering the terrorist threat.

If the ban remains in place, there will be no choice but to continue muddling through in the military commissions, where there is no right to a speedy trial. Rather than hearing evidence of crimes and a jury to render a verdict, we will instead continue to hear about fitting 60 weeks of hearings into a 52-week year and arguments over when the war began.

The real trial of this historic case, meanwhile, won’t start anytime soon.