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| Patrick Doherty |
Yet upon closer inspection, the prosecution of Khalid Sheikh Mohammed and his accused 9/11 co-conspirators does not even appear designed to secure sustainable convictions and bring these alleged terrorists to justice.
Instead, the Guantanamo military commissions seem a contrived attempt to avoid federal criminal court and thereby insulate the CIA from the legal implications of its torture program. The resulting tribunal, however, is likely fatally plagued by its constitutional and logistical shortcomings.
During my recent observations at pretrial proceedings in Guantanamo, the flaws appeared endless.
Prosecutors can unilaterally withhold evidence by invoking national security privilege, immune even from judicial review. Defense teams, hampered by funding and security clearance delays, face up to two-year waits for new hires, without which the case could grind to a total halt. Questions remain whether military officer jurors will be genuinely free at trial to vote their conscience without fear of reprisal.
More alarmingly, it is not even clear that the conspiracy charge against the 9/11 defendants is a war crime triable by a military commission: It is entirely possible that should the case ever make it through a trial, convictions would be tossed out on appeal years from now for lack of jurisdiction.
Above all these myriad concerns looms the issue of CIA torture. Since evidence of this torture can mitigate the death penalty, any roadblock to its exposition undermines the commissions' legitimacy. Yet the CIA has unexpectedly forbidden defense counsel from speaking to any current or former agents about torture whatsoever.
Agency officials remotely instruct prosecutors to cut the courtroom's public feed when purportedly classified information about the torture program is divulged; in some sessions, repeated contested use of this power quickly becomes farcical, as defense lawyers gesticulate wildly but inaudibly beyond soundproof glass.
Recently, defense teams were even denied access to the still-classified Senate Intelligence investigation into CIA torture, despite its centrality to their clients' cases. As Brig. Gen. John Baker, the Marine one-star general overseeing the Guantanamo defense counsel, declared in March, "our nation has a floor of due process for capital litigation, and the ceiling of due process that the commissions provides is always below that floor."
Recognizing this quagmire, U.S. Department of Defense officials were in the process of negotiating guilty pleas carrying life sentences from all five defendants in 2017, but an intervention from then-Attorney General Jeff Sessions scuttled the potential deal and prolonged the case.
And with the retirement on March 23 of Col. W. Shane Cohen — already the third military judge to preside over the 9/11 case in less than two years — the scheduled 2021 trial date has become practically impossible. Cohen's successor, yet to be announced, will inherit hundreds of legal filings and a trial transcript of more than 30,000 pages. Nearly 20 years on from that horrific September morning, trying the 9/11 case in Guantanamo has become a frustratingly Sisyphean task.
In the past, when violent fanatics have tried to undermine American democracy by sowing chaos and destruction, we have drowned them out with our unshakable commitment to the Constitution and the rule of law. The trial and conviction of the Boston Marathon bomber made him seem small. Similar federal prosecutions of the 1993 World Trade Center bombers, the Oklahoma City bomber, the Olympic bomber, the shoe bomber, the underwear bomber, and a litany of others have been impartial, efficient, and resulted in successful and sustainable convictions.
Yet after spending years unlawfully torturing these 9/11 defendants at CIA black sites, the U.S. government rejected a proven civilian court system in order to protect CIA equities. Yet the feeble substitute of these commissions has proven so riddled with logistical impediments and constitutional shortfalls that the federal appellate courts will likely review almost any capital conviction from the 9/11 trial, undoubtedly still years away, with extreme skepticism.
And by blocking the defendants from being tried on U.S. soil, Congress is perpetuating this legal quandary. To persist in pretending otherwise simply does a disservice to the victims, their families and the nation as a whole.
It is time that we as a country accept the Guantanamo military commission experiment has been an abject failure and that Congress permit the 9/11 defendants to be tried in civilian criminal court. Americans deserve better. And the rule of law demands it.
Patrick Doherty is an associate at Ropes & Gray LLP. He attended pretrial proceedings at Guantanamo as part of an observer program of the New York City Bar Association.
"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.
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