The chief prosecutor, Army Brig. Gen. Mark Martins, believes a June 2018 trial date is realistic. Defense attorneys strongly disagree.
Guantanamo Naval Base, Cuba – Prosecutors and defense attorneys in the Sept. 11 case clashed on Friday over whether the trial would be ready to start in 15 months – more than six years after the five defendants were arraigned at Guantanamo Bay and nearly 17 years after the attacks.
Ed Ryan, a member of the government’s trial team, told the judge that the discovery process was far enough along to set concrete milestones leading to a June 2018 panel selection of military officers who will decide the historic death penalty case.
Defense teams disagreed sharply, with one of the lead attorneys contending after the session that the trial was “light years away.”
“I can’t even see it any more,” Walter Ruiz, who represents Mustafa al Hawsawi, told reporters.
During Friday’s hearing, Ryan said the government has given the defense about 365,000 pages of evidence, including 280,000 pages forming the government’s case in chief. The defense teams have received 4,700 pages of evidence related to the treatment of their clients at CIA black sites before arriving Guantanamo Bay in 2006 – about a third of the total discovery of roughly 13,000 pages they anticipate eventually receiving on this subject.
All the defense teams expect to file motions to compel more CIA black-site evidence, saying they are disappointed in what they’ve received so far as well as what they see as a government conspiracy to suppress an illegal torture program.
Gary Sowards, one of the civilian lawyers for Khalid Sheikh Mohammed, argued that the anticipated litigation over the black-site discovery makes pointless any trial scheduling order. He noted that the 13,000 pages of black-site material are only the judge-approved summaries and substitutions of the original classified evidence – and that the Senate relied on six million pages of documents to produce its 2014 report on the CIA program. The five teams want as much of this original evidence as possible.
Cheryl Bormann, the lead attorney for Walid bin Attash, said that the government’s proposed trial date “seems disingenuous, to say the least.”
The judge, Army Col. James Pohl, said he would not rule on the issue in the coming days. He seemed to side with the defense by questioning the wisdom of scheduling a trial given the ongoing status of discovery. Pohl suggested he might come up with his own proposed milestones to distribute to both sides for feedback.
Pohl also raised what he sees as a troubling practical issue – the presence of just one courtroom for three separate pending cases: that against the accused bomber of the USS Cole; against Abd al Hadi al Iraqi, an alleged senior al Qaeda operative; and against the five alleged 9/11 conspirators. Accused USS Cole bomber Abd al Rahim al Nashiri has a trial date of March 2018, leaving Pohl to conclude that merely holding pretrial hearings in the Sept. 11 case could be difficult at times next year.
“I do see a potential train wreck,” Pohl, who is also the chief judge of the military commissions system, said. He added that the solutions were obvious.
“They involve money and construction,” the judge said.
Ryan suggested to Pohl that logistical problems sometimes have a way of working themselves out. If not, Ryan said, the commissions could come up with solutions such as having one case proceed during the day and another at night.
The chief prosecutor, Army Brig. Gen. Mark Martins, told reporters at the Friday press conference that building additional court space was a possibility. A second courtroom exists but does not have the security features required for the cases in pretrial litigation. He said that finding additional resources for the commissions infrastructure would be easier with a trial date set.
James Connell, the lead attorney for Ammar al Baluchi, said at the press conference that having “Night Court” for the 9/11 trial would be undignified. He believes that 2020 is a more realistic year for the trial to start. Earlier in the week, Connell continued his push for discovery on communications between CIA officials and the filmmakers of “Zero Dark Thirty,” which he sees as one possible avenue to attaining more evidence about his client’s black-site treatment.
This pretrial session ended Friday afternoon; a planned second week was not needed and family members, most lawyers, media and others will leave Guantanamo Satuday, March 25. The parties moved through all the pretrial motions that were ready for oral arguments, meaning they had been fully briefed in writing. The next two-week session is scheduled to begin May 10.
Earlier this year, prosecutors moved for a March 2018 trial date. But the pretrial session scheduled for late January was postponed after Bormann broke her arm and could not attend. This week, Bormann needed help carrying heavy legal binders on her walk to the podium but is healing well from surgery. Ryan told Pohl that pushing the trial date to June 2018 was an appropriate adjustment, a notion that all five teams found implausible.
James Harrington, the lead attorney for Ramzi bin al Shibh, argued to Pohl that the problems with scheduling a trial date expand beyond the many pending discovery disputes and the absence of multiple courtrooms. Insufficient office space and equipment and an overall shortage of defense resources would make trying any death penalty case on the island difficult – let alone the largest criminal case in U.S. history.
He described the commissions as “an ill-conceived mess” and said he was concerned about the mental and physical health of his team members.
Ryan took a somewhat mocking tone about defense complaints that “it’s just too hard down here.”
He said his team would be here for the start of trial, and remain for as long as it takes.
“We’re not forgetting September 11,” Ryan said.
Harrington, the 72-year-old founder of Buffalo-based Harrington & Mahoney, rose to make one final point.
“Ed Ryan has little sympathy for my advanced age,” he said.
“None,” Ryan confirmed.