Oct 9, 2020 | OPINION | By Reed Schaefer | Illustration by Patil Khakhamian

Last month, we remembered the 19th anniversary of the Sept. 11 attacks. On that day in 2001, 2,976 people died due to the hijacked plane crashes into the World Trade Center in New York, at the Pentagon in DC, and in a Pennsylvania field. 

The attacks are attributed to the Al-Qaeda terrorist organization and Osama bin Laden; however, the United States has detained five men who are formally accused of cooperating with and planning the 9/11 attacks. 

These men have been held since 2002-2003, and still have not come to trial. Most recently, Col. Stephen F. Keane, the U.S. military court judge who took over the case on Sept. 17, 2020 quit on Oct. 2, after only two weeks on the job.

The recent resignation of the judge is just one small reason why this case remains unresolved now almost 20 years after the attacks. After their capture in 2002 and 2003, the defendants were transferred to a secret network of overseas prisons run by the C.I.A., according to the New York Times.

During this time, the men were reportedly kept in isolation and brutalized, including waterboarding, in order to obtain confessions. In 2006, during the George W. Bush administration, the defendants were transferred to Guantánamo Bay, Cuba, a U.S. military base, for trial. 

However, it was determined at that time that the confessions are not admissible because of the torture techniques used to coerce the confessions. In 2007, the Justice Department had the F.B.I. question the defendants in a non-coercive manner to obtain admissible evidence. Despite questions about the validity of the evidence, the defendants were formally charged in 2008 with designing the plane hijacking plan, training the pilots, and providing money and visas.  

When President Obama came to office in 2008, he suspended the trials so that the Justice department could review the military trials. Disagreements on trial procedures caused the case to sit around until 2012, when the case restarted with new charges and greater protection for the defendants instituted by the Obama administration. 

The joint trial of all five defendants chosen by the prosecution has many complexities and has suffered many setbacks as a result. Further, the defense attorneys appointed from the Pentagon reportedly withheld trial evidence and were suspected of eavesdropping as well, leading to allegations of trial misconduct by the prosecution.

Another aspect of the trial that has created complexities is the classified documents the defendants need to defend their case. A military judge cannot order the government or intelligence agencies to disclose classified information, making evaluation of the facts difficult. 

The judge does have the option to suspend the trial until information is released — or of dismissing the case altogether. Over the years, documents have been declassified as rules have changed, importantly, including a redacted summary released in 2014 which mapped out the information needed by the defense counsel for the trial to proceed.  

Another source of delay is the turnover of personnel on the case. Two of the three military judges in the case retired from service and left the case; the third left the bench for a prestigious position in the Marine Corps. The military defense lawyers typically only spend 2-3 years on the case, and the main defense attorney, James P. Harrington, who has been on the case for eight years, has to step away for health reasons. On top of this, another defense attorney, David Bruck, has said that he needs another 2 ½  years to prepare for the trial.

While it is not new for presiding military judges to change, Col. Keane’s resignation after only a couple weeks on the job is unprecedented. Keane cited a series of potential conflicts that would make him appear biased and unfit for the case. In the two weeks he was on the case, Keane ordered the cancelation of all hearings until next year and delayed the start of the trial until at least August 2021. 

In March, his predecessor, Air Force Col. W. Shane Cohen, abruptly resigned in March after nine months on the bench, for family reasons. Since the outbreak of COVID-19, the case has ground to a standstill.   

All of these complications beg the question: why has the U.S. paid $6 billion of taxpayer money into Guantánamo’s military court and prison since 2002? No trial appears to be on the horizon. What is the point of having a military court in Guantánamo if it is incapable of even bringing a case to trial? How will the United States benefit from convicting these bit players in the 9/11 tragedy? 

We must start asking ourselves if it is worth funding this military court or if it should even be conducting the trial at all. It is clear that there is a lack of commitment by those involved to bring the case to resolution, or perhaps a fear that it won’t go in our government’s favor. This trial is not bringing justice to any of the 2,976 individuals who perished on 9/11, or their families — they deserve better. 

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