The first military proceedings to take place at Guantánamo since Trump took office were as uneventful as they were symbolic. After more than four years of pre-trial proceedings in a stop-and-start schedule, the judge was considering yet another delay.
Hearings connected to the military prosecution of the five men charged with plotting the 9/11 attacks reconvened Wednesday, but an attorney for one of the men had had been injured over the weekend. So the first issue up for discussion was whether hearings could proceed in her absence.
Former President Barack Obama had declared his intentions to “close Guantánamo,” but as Trump took office last week, 41 detainees remained, among them seven men in pre-trial proceedings. The five 9/11 defendants — Khalid Sheikh Mohammed, Walid Bin Attash, Ramzi Binalshibh, Ali Aziz Ali and Mustafa al Hawsawi — were arraigned in May 2012.
The chief prosecutor, Army Brig. Gen. Mark Martins, told the 11 journalists waiting to attend the proceedings starting on Wednesday that under the new Trump administration the prosecution is “just as determined as ever” to try this case “however long it takes.”
It was looking to take a while longer, however. Cheryl Bormann, Bin Attash’s attorney, had broken her arm in a fall. Her role as a “learned counsel” is required for defendants in death penalty cases, unless Bin Attash were to waive her presence and Judge James L. Pohl were to rule that the case can go on without her.
Family members of six victims of the 2001 attacks and one first responder injured at the World Trade Center site had traveled to Guantánamo to view the hearings this week. One of them, Lee Hanson, is scheduled to be deposed as a witness to phone calls made to him by his son, Peter Hanson, who was traveling to California with his wife and 2-year-old daughter on United Airlines Flight 175 when it was hijacked and flown into the south tower of the World Trade Center.
If the injured attorney were absent, Bin Attash could argue he wasn’t given adequate representation.
This week’s hearing is in many words routine, but it also provides a small window into how complex and time consuming trying defendants on Guantánamo can be — an important lesson if Trump actually plans, as he has previously said, to expand the detention center with “some bad dudes.”
The prosecutor had proposed a trial schedule that opens voir dire questioning of a military jury in March 2018, but James Harrington, learned counsel for co-defendant Ramzi Binalshibh, told reporters that “2020 is a more realistic year to start.”
The prosecutor’s “ambitious schedule” was unworkable, Harrington argued.
Preparing for trial in the offshore naval base comes with myriad logistical difficulties, like dealing with classified evidence and the security clearances required to access it, and translating material to Arabic — not to mention the numerous motions that need to be filed and argued in court.
Since charges were first filed in 2011, the parties have presented more that 270 motions.
One of the more contentious issues is the defense’s lack of access to the 2014 Senate torture report in its 6,000-page entirety, as well as supporting documents, showing how the defendants and others were treated during their captures, interrogations, and years in the CIA’s secret “black prisons” around the world.
Although the judge ruled that the Defense Department must keep its copy of the report pending further motions for its release, the documents are not currently available to defense attorneys, even though they hold security clearances. Instead, the prosecution is selecting and summarizing information from the Senate investigation that it deems relevant to each defendant, and those summaries will be made available to the defense.
That hasn’t happened yet, however.
Bin Attash appeared before the court wearing a camouflage jacket over traditional white garments and head covering. “You said I could consult with the lawyers,” he said, speaking in English. “On the record I do not have an attorney that works with me. I have people that work against me.”
Judge Pohl ruled to delay proceedings until Borman, the injured counsel, could attend. Bin Attash, who has previously argued that he wants Borman replaced, said again after the ruling that he wanted a new “learned counsel.” It’s a request that has already been denied.
By noon on Wednesday the public sessions in the courtroom were adjourned until March. That meant the lawyers, media, representatives of nongovernmental organizations, and several family members of 9/11 victims who arrived on a Boeing 767 from Joint Air Base Andrews on Monday, would have to pack up and go home.
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