The potential destruction of the military commissions and the fate of the 9/11 case

Part 3 of 3

In Part 2, Church described the lengths to which the CIA was willing to go to suppress evidence of its torture of prisoners held at its “black sites.” This column will speak of the dire threat the CIA poses to the military commissions themselves.

There’s another way in which the CIA may be destroying the military commissions. One of the most hotly contested issues in both the 9/11 and al Nashiri cases has been Judge Pohl’s order that a broad swath of documents be provided to the defense on the CIA’s RDI Program.  The prosecution, through BG Martins, has boasted about how it has been working 24/7 to provide the court-ordered information. But the day after I had left, Judge Pohl described how the process is going, which is very badly. The prosecution enjoys under applicable law the right to summarize highly classified evidence, rather than provide it to the defense, even though defense lawyers and their staffs have the requisite security clearances.  

An overriding consideration, though, has been to try the defendants, insofar as possible, in open court, not in secret sessions. I applaud this goal. But on Monday, July 25, after I had departed, Pohl described the status of the discovery (the production of information, in this case by the prosecution) he had ordered on the RDI Program. The government had given him about 50 percent of the summaries it intended to provide the defense. 

After Pohl’s comparison of the summaries with the actual documents (under the prevailing legal rules, the defense has no say in this, which is a story unto itself), Pohl declared that he deemed inadequate virtually every summary provided by the prosecution, and had sent all the deficient summaries back for enhancement.  

It doesn’t take Stephen Hawkings to discern who had determined what the summaries would provide: the CIA. After all, it’s the Agency’s program, personnel and conduct that stand to be revealed. The pretrial proceedings will be significantly prolonged by this stubborn defiance of Pohl’s directives.

This leads to another reflection. The 9/11 case, I believe, will never be tried in a war court. Pretrial proceedings have continued for well over four years, yet the case is nowhere near being ready for trial. James Connell, lead counsel for Ammar al Baluchi, told our NGO group that his team had calculated that the trial would begin in 2020, but this was before Judge Pohl announced how deficient the summaries of the RDI material are. So we probably should add at least another year to Connell’s estimate.  

Walter Ruiz, the chief attorney for Mustafa al Hawsawi, predicted many months ago that he thinks 2025 is more like it, and his estimate also predated Pohl’s lamentable news on the RDI material.

Should Walid bin Attash finally succeed in ditching Cheryl Bormann as his lead counsel and Michael Schwartz as his second-in-command — and it’s hard to conceive of a trial in which the client refuses to allow his chief lawyers even to sit at the counsel table, let alone talk with them — that would entail far more delay. Why? In a capital case, each defendant must have an attorney such as Bormann, well-steeped in defending cases where the client’s life stands in the balance. The prediction I heard held that it would take three years to find a qualified replacement willing to dedicate so many years (with no end in sight) to the 9/11 case.  

The seemingly endless parade of reasons for delay in the pretrial proceedings in both the 9/11 and the al Nashiri cases visits a special kind of torment on relatives of those who perished in the attacks. While I don’t expect that any of them will “get over” their losses, their inability to bear witness to a trial of the alleged criminals and thereby close that chapter of their lives must increase their pain exponentially. According to Carol Rosenberg’s July 28 report in The Miami Herald, survivors of people killed on 9/11 who had observed the most recent proceedings criticized the current focus of the court on the torture of the five defendants.   

“Torture is living a life without your love one,” said one. Another proclaimed: “We talk about human rights. They don’t deserve human rights, because they weren’t human ...” In stark contrast, chief defense lawyer Walter Ruiz spoke of Mustafa al Hawsawi’s ordeal: “He continues to have to make a choice between eating and defecating, between taking nourishment and undergoing the excruciating pain of a bowel movement” as Hawsawi “continues to bleed daily” as a result of rectal abuse while in CIA custody.

As in armed combat, pain and fear lead sufferers to hate and to deny the humanity of the “others,” their enemies, who when tortured feel their own pain. That’s a shame, and still greater shame resides in the delays at the military commissions and the CIA’s major contributions to them, which at the least have contributed to the survivors’ pain and feelings of hatred.

In the meantime, nothing much goes on in the war courts, and perhaps nothing final ever will.    

 Charles Church is a Salisbury-based human rights lawyer who travels to observe Guantanamo’s military commissions under the auspices of Seton Hall Law’s Center for Policy and Research. While there, Church sends dispatches describing the proceedings, and his thoughts about them, to this newspaper.