As reported in the New York Times, the judge overseeing the military tribunal of Khalid Shaikh Mohammed and the four other suspects believed to have designed and organized the September 11 attacks has set a trial date of January 2021. Although there have been numerous court hearings for these five suspects since they arrived at Guantanamo, there have also been numerous delays, and this ruling marks the first time that an actual date has been set for the trial to begin.
Of course, whether this date actually holds will depend on many factors. The government has been operating military commissions in Guantanamo for nearly two decades and has poured millions of dollars into creating high-tech courtrooms in order to try individuals the administration of George W. Bush deemed “the worst of the worst.” Yet, at the same time, it seems that one of the biggest logistical obstacles to seeing justice served is that Guantanamo is not yet ready to host a trial that could last several months.
As surprising as that may be, the larger problem with these cases is the government’s continued effort to taint the trials with evidence obtained by torture – while at the same time obstructing both the court’s and defense attorneys access to this information. Sadly, even the prospect of a date certain for trial is not likely to remove the deep stain of unfairness that will otherwise mark these cases should the government continue on its current course. Equally sadly, the victims of the September 11 attacks will continue to be denied the justice that has eluded them for nearly twenty years.
The initial premise underlying the creation of the military commissions at Guantanamo Bay – as opposed to trying those allegedly responsible for the September 11 attacks, and their compatriots, in federal court – was to design a tribunal that could accommodate a refined sense of the fairness that stands as a hallmark of the American criminal justice system while accounting for the needs of expediency in fighting the “war on terror” – and to do so in a place the federal courts could not reach. If it was not clear at the time Congress created the tribunals, it is today: a system with founding principles such as these was bound to be fraught, especially when the defendants would be represented by military and civilian lawyers duty-bound to ensure that their clients received the fair trials guaranteed by the U.S. Constitution.
And it remains that the government’s initial hope that this military commissions system would serve as an expeditious tool in the fight against terrorism has not borne out. The U.S. Supreme Court early on ruled in a number of cases that Guantanamo and the detainees there were not beyond the reach of either the Constitution or the federal courts. And even Congress has legislated, often in response to the Supreme Court’s rulings, to eliminate some of the worst aspects of the initial military commissions system.
Through it all and despite the reforms, the military commissions system as it exists today still allows for the possibility that evidence derived from torture could be admissible at the trials of many of the remaining detainees, including Khalid Shaikh Mohammed and the four other suspects accused of masterminding the September 11 attacks. And the government continues to pursue the duplicitous approach of claiming that all of its evidence is free of any taint, while at the same time obstructing efforts for those claims to be independently verified, either by the judge or by defense counsel.
The ultimate irony is that, had these cases been sent to Article III courts – like the vast majority of post-September 11 terrorism cases – none of this maneuvering by the government would have been allowed. Rather, the cases would have been tried based only upon admissible evidence and, one way or another, would have been resolved years ago. Should the January 2021 trial date hold, there may well be trials in Guantanamo, but it does not seem likely there will be justice for either the accused or the victims.
Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law at New England Law | Boston. They are the authors of The Case for Congress: Separation of Powers and the War on Terror.