In any normal case, in any ordinary court, judges hold preliminary hearings to narrow the issues and move the case closer to trial. But there is nothing ordinary about the prosecution of the five men accused of plotting the Sept. 11, 2001 attacks. And the military commission at Guantanamo Bay, where the case is being heard, is no ordinary court. Instead of bringing the case closer to trial, each preliminary hearing in Guantanamo seems to move it further away.
Yes, the case is complex. But that's not the problem. Federal courts deal with thorny, multiple- defendant criminal cases all the time. Rather, the difficulty is the sheer number of "emergency" issues -- almost all of them unique to Guantanamo -- that keep cropping up. So far, the defense and prosecution have filed together, though the defense far more, 30 individual "emergency" motions -- requests to the court that it take some kind of action.
A set of hearings held on Aug. 11-14 -- the 12th since the defendants were arraigned in May 2012 --continued along the same, troubled path. The parties initially thought they would be dealing with a subject that had been hampering progress on the case since April: the discovery that the FBI had secretly conducted an investigation into possible wrongdoing on the part of one or more members of the five separate defense teams (one for each defendant). Such an investigation could put defense team members in the untenable position of having to provide information to defend themselves or others against possible criminal action -- information that could be against the interests of their own clients. They could also potentially be forced to expose confidential attorney-client information in the process.
The reasons for the FBI probe are still not entirely clear. All references to the investigation's scope and origin in publicly available military commission documents are blacked out. Media reports, however, indicate that it began over allegations that members of defense teams had improperly disclosed classified information. No charges were ever brought and prosecutors now claim the investigation is entirely closed, though defense attorneys dispute this.
Instead of focusing on the FBI probe, however, the hearings earlier this month were dominated by a new decision that seemed to surprise both the prosecution and the defense -- and delay the proceedings even further: an order from the military judge in the case, U.S. Army Col. James Pohl, to sever the case of one of the five defendants, Ramzi bin al-Shibh, from the joint trial entirely. Neither the prosecution nor bin al-Shibh's defense team had requested severance. "In my 25 years, I've never seen a judge order [severance] without a request" from either the defense or the prosecution, Cheryl Bormann, defense attorney for one of the other 9/11 defendants, told the Miami Herald.
Ironically, Judge Pohl's order indicates that his decision to sever was an attempt to try and move the case along. Without bin al-Shibh in the case, several complicated issues would be removed.
Members of other defense teams were involved in the FBI probe, but it has clearly impacted Ramzi bin al-Shibh's team the most. Though the investigation appears to have begun earlier, the FBI interviewed a security officer on bin al-Shibh's team on April 6, then asked him to sign a gag order not to speak about it. The defense counsel for bin al-Shibh ended up firing that security officer, along with three other members of the team also connected to the probe. "We have basically had a spy within our team for a number of months," James Harrington, lead defense counsel for bin al-Shibh, said in June.
In response to the probe, the court has had to appoint an entirely new, separate special trial counsel team, walled off from the prosecution, to investigate the facts around the FBI's investigation. It has also ordered the appointment of independent lawyers for bin al-Shibh, separate from his trial team, to advise him on whether to continue with his current attorneys or get new ones. Doing so will take time because each lawyer on the new bin al-Shibh team needs to be identified, hired, and provided security clearance, which could take months. Further complicating matters, the prosecution has challenged bin al-Shibh's competency to stand trial, after he erupted into outbursts during an earlier hearing, along with claims that he had been harassed by guards at Guantanamo.
But instead of welcoming the bin al-Shibh severance, the prosecution reacted by filing an emergency motion, asking that the judge reconsider his decision. Though certainly interested in moving the case forward, prosecutor Clayton Trivett told the judge during the hearing that the cost of severance was not worth saving a few more months of delay. He called it a "drastic" remedy, and argued that it would be traumatic to victims and family members of the 9/11 attacks who would then have to follow two cases and testify at two trials.
As a result, rather than dealing with the FBI probe or the approximately 20 other motions on the docket -- some of which have been pending more than a year -- Judge Pohl ended up listening to arguments about whether he should reconsider his decision. Instead of moving the case forward, his order moved the case back. Nothing can be dealt with until the conflict of interest is resolved. And that could take until the end of the year.
The bin al-Shibh developments are only the latest in a long series of only-in-Guantanamo delays. Just after the defendants were arraigned in 2012, defense counsel filed an emergency motion contending that their offices were so infested with rats, mold, and rat feces that they could not use the space to carry out their work. Resolution of that issue resulted in multiple delays.
In January 2013, the court's audio-visual feed, visible to a small set of commission observers, was abruptly cut off by someone other than Judge Pohl; previously, Pohl was believed to be the only person with the authority to use the unique-to-Guantanamo "kill-switch." Later, a clearly annoyed Pohl learned that something called the Original Classification Authority (OCA) -- which is likely the CIA given that most of the information subject to censorship in the case is related to the agency's rendition, detention, and interrogation program -- had hit the kill switch. Judge Pohl promptly cut off their privileges. But the episode sparked a number of emergency motions from the defense, asking the court to look into what other sort of monitoring the OCA might be up to.
Later, defense attorneys discovered listening devices disguised as smoke detectors in attorney-client meeting rooms, despite prior assurances from Defense Department officials that these rooms were bug-free. Then in April, a "near catastrophic" Defense Department server failure resulted in the disappearance of an enormous number of prosecution and defense files from the system set up to handle the highly classified documents in the case. This resulted in more emergency motions, delaying proceedings again for months.
Many of the delays at Guantanamo can be traced back to what one of my colleagues recently called its "original sin": the torture of defendants in CIA custody. Had the government simply come clean on these abuses and not tried to cover them up by classifying them as top secret, the FBI probe, the CIA kill-switch episode, and the computer problems on the special high-security network may never have occurred. All of these problems stem from the fact that so much information in the case is classified.
Numerous additional motions related to how the parties should handle classified information in the case have already taken time out of the pre-trial hearings, and other are still pending. Complicating matters is the fact that the U.S. government chose to locate the commissions on a remote U.S. military base, not previously equipped to handle legal proceedings, and accessible only via a three-hour flight. The commissions are also an entirely new court system, with new rules that have virtually zero legal precedent.
The result is that arguably the most important terrorism case in U.S. history is now languishing in limbo more than two years since it began and nearly 13 years since the crime occurred, with a trial date likely years away.
President Barack Obama was right to want to try this case in federal court. Attorney General Eric Holder announced the decision to transfer the case to federal court in 2009 but then delayed moving the defendants to the United States after confronting political opposition. Congress then began to enact a series of restrictions that blocked the administration's ability to use certain funds to transfer the defendants, or any other Guantanamo detainees, to domestic soil. Had the administration made the transfer before Congress began enacting restrictions, this trial would likely be over and done with by now. With over 200 years of legal precedent and experience handling complex cases, U.S. federal courts have prosecuted over 500 terrorism cases since 9/11. Though Human Rights Watch has documented serious problems associated with many of these prosecutions, U.S. federal courts still offer far stronger due process protections than the military commissions.
Instead, Obama waited until deep into his first term to take any action. His administration then blamed Congress for enacting restrictions that left him no choice but to keep the case in Guantanamo. Obama should work to get those funding restrictions lifted, by, for example, acting on veto threats he has issued, and not bring any further cases before the military commissions, as he has already done. In addition to being painfully slow, the commissions also offer a substandard system of justice that subverts fair trial standards.
President Obama should also end the secrecy over the CIA's detention and interrogation program, the seed of many of these delays and an added obstacle to any semblance of fair process in the commissions. Sens. Dianne Feinstein, chair of the Senate Intelligence Committee, and Carl Levin, chair of the Senate Armed Services Committee, have also recently asked the president to do the same. This would not change the fact that the military commissions are a second-tier, alternative system of justice that should not be used. But if the administration chooses to go forward with this broken system regardless, at very least it should stop trying to hide its own abuses and perversions of the cases in process.