The 9/11 Trial: Three Takeaways from This Week in Court

October 14, 2016
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A public affairs officer escorts media through the currently closed Camp X-Ray at the U.S. Naval Station in Guantanamo Bay, Cuba on June 27, 2013. (Joe Raedle/Getty Images)

The war court at Guantanamo Bay, Cuba reconvened this week, with attorneys arguing a full docket of pre-trial motions in the case against the five men accused of plotting the 9/11 attacks.

Arun Rath has been covering the 9/11 war court in various capacities for FRONTLINE since the five defendants were arraigned there in 2012.  After sorting through all the legal arguments, here are his main takeaways from the week.

Can Americans Be Forced to GITMO to Testify?

This week the court considered whether the “confrontation clause” of the Sixth Amendment — which allows defendants to confront their accusers and witnesses in open court — should apply to the 9/11 defendants.

The government would like to have some witnesses testify from the U.S. mainland via video teleconference, which the defense thinks is an unacceptable violation of the Sixth Amendment.

A final ruling will determine whether the judge in the 9/11 trial has the authority to compel witnesses to testify, the way he would in any other U.S. court. That power would mean if a witness in the U.S. refused to come to the war court voluntarily, the judge could order the Federal Marshals Service to take that person into custody and fly them to Guantanamo.

Defense attorney James Connell said, “We know there are some people, Mr. Rodriguez, for example, who does not wish to travel to Guantanamo to testify.”

Connell was referring to Jose Rodriguez, former director of the National Clandestine Service of the CIA. Rodriguez is notorious for ordering the destruction of hundreds of hours of videotapes recording what defense attorneys say is the interrogation and torture of two Al Qaeda suspects: Abu Zubaydah and Abd al-Rahim al-Nashiri. So imagine this scenario: a former top CIA official being escorted by U.S. Marshals to Gitmo in order to face questioning from lawyers representing accused terrorists.

Injuries Addressed

One of the accused, Mustafa al-Hawsawi sits on a pillow in court.  In 2014 — two years into these hearings — the release of the summary of the Senate torture report revealed why: he was subjected to “rectal feeding” with “excessive force” during his detention at Guantanamo Bay.

His lawyer, Walter Ruiz, says the more appropriate term is rape, especially considering that CIA records discuss its utility as a means of behavior control, and how detainees were “threatened” with it. A footnote in the report revealed interrogators used the widest gauge tube possible, and that al-Hawsawi was left with “chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.”

Ruiz has long been arguing that al-Hawsawi needs surgery to repair the damage, and this week we learned that he is scheduled to have surgery to repair the prolapse and anal fissure on Friday evening after court.

Why is this happening 13 years after the injuries were inflicted? Mr. Ruiz says he doesn’t know, and only found out about the scheduled surgery in passing, in a conversation with a member of the prosecution.

Joint Task Force GTMO, the combined military force in charge of the prison, will not address questions about the medical condition of specific inmates, but provides this statement: “The medical care provided to detainees at JTF-GTMO is consistent with that provided to U.S. service members. The health and well-being of detainees is the primary mission of the JTF medical staff and they take this duty as seriously as they take their duty to provide medical treatment to U.S. service members or any other patient in their care.”

Trial Date in Sight?

The pre-trial stage of the 9/11 trial has been dragging on for four years now, delayed by the complicated issues that need to be worked out, and by a string of controversial incidents, including a 2014 episode in which defense attorneys say that the government attempted to turn a member of their team into an FBI informant.

But the last few sessions have been very productive, with the court arguing dozens of motions covering everything from how much evidence seized from the raid that killed Osama bin Laden the defense can see, to whether Khalid Sheikh Mohammed has a right to send a letter to President Barack Obama. Brigadier General Mark Martins, the lead prosecutor in the case, says the government has finished reviewing a massive trove of documents and materials related to the CIA’s Rendition and Detention program to determine what information can be released to the defense teams.

According to Martins, the government has already released more than 330,000 pages of unclassified material to the defense.  There are still a ton of details to work out — the judge needs to review the documents before the defense can view them — and it’s safe to assume that the defense will want more than the government is willing to reveal.

But setting a schedule with an actual trial date looks far more likely than it did last spring, when one of the defense attorneys told me, “It gets farther and farther away each day.” Now some are confident a trial could start as early as 2018.

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