Last week the judge of the military tribunal at Guantanamo Bay, Cuba that is supposed to try five men accused of planning and supporting the 9/11 terrorist attacks withdrew from the case. Marine Corps Colonel Stephen F. Keane based his recusal, after having the opportunity “to review certain aspects of this case,” on previous legal work he had done to support terrorist manhunts in Iraq and on family connections in the New York City area.
Keane had taken over the case only last month. He was the fifth judge to preside over the tribunal since the suspects were arraigned in 2012. Keane already had delayed filing deadlines so he could familiarize himself with everything in the case that had already transpired. Under his schedule, jury selection for a trial would not start until next August at the earliest. Now a sixth judge must be chosen, and this change probably will push back the trial schedule even farther.
Nineteen years have passed since the 9/11 attacks. The offenses of which the defendants are accused, which involved plotting and preparation for the attacks, occurred even longer ago. All of the defendants were captured in 2002 or 2003.
By far the most important of the defendants is Khalid Shaikh Mohammed, who, as mastermind of the operation, is an even more important figure than the suicide pilots and other participants who died in the attacks. One might say that the defendants already are being punished by being incarcerated for close to two decades, but this is a capital case. The accused face the death penalty. No verdict has been rendered. Justice has not been done.
It did not have to be this way. The United States has a strong record of seeing justice done to accused terrorists, in civilian courts that operate under Article III of the U.S. Constitution. The part of the court system that has compiled the biggest part of that record is the Southern District of New York. That district includes the World Trade Center and would be the obvious and appropriate place to try the 9/11 case.
The strength of the Southern District’s record is due partly to the expertise and clout of the U.S. attorney’s office there. It also is due to the experience of the district judges in handling terrorism and national security crimes — an experience so extensive it provides the makings of a manual on how to conduct such cases.
But in the wake of the national trauma of 9/11, during the George W. Bush administration, everything got subordinated to the notion of a “war on terror.” That encouraged the militarization of anything having to do with counterterrorism. Accordingly, there arose the idea of some kind of military tribunal to try the perpetrators, even though there was no established institution or procedure that fit that bill. Moreover, military capture of suspects in a foreign land in no way precludes their trial in a civilian court in the United States — as demonstrated this week by the charging of two Islamic State militants in federal court in Alexandria, Virginia.
Since the conception of a military tribunal at Guantanamo, the attempt to administer justice there has entailed one delay after another. Some of those delays involved the treatment — especially torture — of suspects in U.S. custody and would have presented sticky legal issues in any court. Khalid Shaikh Mohammed reportedly was waterboarded numerous times. The resulting complications in trying a suspect are one of several reasons that the resort to torture was a tragic wrong turn.
Other delays, however, have more to do with the improvised nature of the military tribunal, with many of the rules and procedures having to be devised on the fly. The Bush administration’s initial attempt in organizing a tribunal was declared unconstitutional by the Supreme Court in 2006. Congress enacted a legislative remedy later that year, but some of the same issues that arose in the first version of the tribunal, especially involving the rights of defendants, have continued.
Questions of secrecy and admissibility of evidence have dragged out the pre-trial proceedings. So have questions — arising from this type of hybridization of military operations and criminal law — of what constitutes a war crime and of the role of international law.
The longer the proceedings drag on, the more each delay is compounded by the length of the record that is being dragged along too. With each successive change of personnel, there is more that the newcomer has to read to get up to speed. And rotation of personnel is intrinsic to the way the way the military does business.
Of the judges who preceded Colonel Keane, two retired from the military and a third left for a more prestigious position in his home service. A fourth was the chief judge for military commissions, who handled the case on an interim basis and now must appoint a sixth judge.
Military defense attorneys rotate as well, usually looking for an upward assignment after a couple of years on a case. There also has been turnover of civilian defense attorneys. Earlier this year a 75-year-old specialist in death penalty cases who was part of the defense team withdrew from the proceedings. The process of getting his successor up to speed through meetings with the defendants has been slowed by complications related to the coronavirus.
The physical location of Guantanamo has further complicated everything related to the tribunal. Participants in hearings have to commute from the United States to the base for sessions lasting from one to three weeks. Some delays have stemmed from hurricanes or health worries. Difficult working conditions have been a discouragement to contractors working for the court, which has meant turnover in their ranks, too.
It is perversely fitting that so many difficulties in a legal proceeding have occurred at Guantanamo, given the Bush administration’s reason for picking that spot in the first place as a holding pen for suspected terrorists. As a leased military base on the territory of a shunned foreign country, it was chosen in an effort — notwithstanding some subsequent Supreme Court decisions — to put it beyond the reach of U.S., Cuban, or any other law. That’s not a good basis for the full and efficient administration of justice.
The mistake of Guantanamo is part of the larger mistake of militarization of so much of counterterrorism. Military force has a role, but is only one of several tools that must be used, including a well-established system of law enforcement and criminal justice. The costs and counterproductive effects of the excessive militarization have included the radicalization of people resentful of collateral damage from military operations. It has included the birth, as a direct result of a U.S. invasion of Iraq launched in the name of a “war on terror,” of the terrorist group Al-Qaeda in Iraq, which later morphed into Islamic State. And it includes the failure to see justice done to perpetrators of the horror that was 9/11.