Fifteen Years On, Tense 9/11 Hearings Close With Limited Progress Towards Trial

Defense attorney Walter Ruiz spoke at Thursday's press conference. He called the CIA's rendition program an "international criminal enterprise."

Guantanamo Naval Base, Cuba – Fifteen years after the Sept. 11 terrorist attacks, hearings in the military commission charged with holding to account the five accused drew to a close for summer 2016. The sole pretrial session convened this summer concluded two days earlier than scheduled with a surprising burst of efficiency.

The chief prosecutor, Army Brig. Gen. Mark Martins, nevertheless declined to predict a trial date at a Thursday morning press conference after the parties burned through a dizzying array of motions pending in the war crimes case, which dates to a May 2012 arraignment.

“The government will never lose interest in this,” Martins said, after acknowledging several of the victim family members who attended the hearings.

Defense attorneys say that a trial is likely still years away. James Connell, lead attorney for Ammar al Baluchi, said that the military commission continues to live with the “terrible costs” of the government’s past torture of the five defendants, all of whom face the death penalty.

Walter Ruiz, who represents Mustafa al Hawsawi, described the torture program at CIA black sites as an “international criminal enterprise” because of the cooperation by "foreign state partners." He said that the U.S. government could speed up the case by declassifying information sought by defense teams. He added that the government's professed national security concerns in this tribunal are incompatible with what he views as fair trial rights for the accused.

The lead attorney for Ramzi bin al Shibh, James Harrington, suggested the case could be expedited if the government took the death penalty off the table.

Jefferson Crowther, a victim family member who attended the hearings with his wife, Alison, responded later in the press conference: "They better not. I want this to be a capital case.”

The Crowthers’ son, Welles Remy Crowther, an equities trader at Sandler O'Neill & Partners, died at the age of 24 in the South Tower on Sept. 11 after saving many lives. Other victim family members who spoke at the conference said that the media has been too sympathetic by focusing on the treatment of the defendants.

“It’s a mass murder case,” said Terry Strada, whose husband, Thomas, was a 41-year old senior vice president of corporate bonds at Cantor Fitzgerald and the father of three children when he was killed on Sept. 11. “It’s not a human rights case.”

This was the 17th session of pretrial hearings to be held in the case. Five days of open hearings were spread across two weeks. Pohl also held a 2-1/2 hour closed session involving classified information. [Browse recent coverage.]

Oral arguments covered a diverse range of issues tied to the past treatment of the five 9/11 defendants in CIA custody and their current conditions of confinement, including how they communicate with their attorneys and family members. Defense attorneys expressed numerous concerns over their access to evidence and witnesses, while the government sought to limit the distribution of detainee “propaganda” from the defense teams to third parties.

The prosecution also sought to focus attention to the events of Sept. 11, 2001, as the proceedings have generally focused more on the torture that followed. On Tuesday, prosecutors asked the judge to pre-admit into evidence the death certificates or other death-certifying documentation (such as court orders) for the 2,976 victims. Defense attorneys opposed that motion.

The judge, Army Col. James Pohl, did not issue any notable rulings except to deny defense requests that he recuse himself from hearing a motion that seeks his and the prosecution team’s removal from the case. Three defense teams contend that the judge and the prosecution improperly colluded to destroy evidence related to a CIA black site. He will hear oral arguments on that issue in the next session, scheduled for the first two weeks of October.

"Allegations that can be wild and extreme should not be confused with serious allegations," Martins said Thursday when asked about the defense claims of evidence destruction.

As in the May 30-June 3 session, Pohl worked through all the motions that were available for argument because they had been fully briefed in writing. This was despite the fact that defendant Walid bin Attash renewed his attempts to fire his lawyers, halting the progress early on. Bin Attash was removed from court on July 21 after his attorneys approached counsel table, causing a visible and highly emotional reaction from the defendant. For the remainder of the session, any time Bin Attash was present, his lawyers sat at the back of the room at a spare table.

This session queued up an interesting and unresolved debate about whether a defendant’s 6th Amendment right to compel favorable witnesses applies to the military commissions at Guantanamo Bay. Defense attorneys oppose having to ask government permission to interview certain types of potential witnesses.

“If they want to wander around lower Manhattan… and ask if those towers really did fall that day, I have no objection,” prosecutor Ed Ryan said during oral arguments this past Tuesday.

James Connell objected, calling the statement “gratuitous.”

“It's only gratuitous when it's the government saying the towers fell, not if it's torture,” Ryan responded. (Pohl overruled the objection.)

At the concluding press conference, Ruiz said that his client continues to be tortured because the U.S. is not living up to its responsibility under the Convention Against Torture to provide rehabilitation for torture victims. He said the government is fighting disclosure of the CIA rendition program not out of national security concerns but to prevent embarrassment and accountability for its own widespread criminal conduct.

"That's the answer you will never hear from Gen. Martins," Ruiz said.