It’s been over 17 years since the 9/11 attacks that killed 2,977 people and over 10 years since five members of Al-Qaeda accused of supporting the attack, including Khalid Sheikh Mohammed, the self-described “mastermind,” were charged in a U.S. military commission.
Yet still, the actual trial hasn’t even started yet and anyone who follows the case isn’t hopeful that it will start soon.
The entirety of the case is really just to decide one thing: death or life in prison. The U.S. has previously stated that they will never let the prisoners go, regardless of the results, so the only question left is whether they’ll be sentenced to death, serve the rest of life in prison guilty, or die before a verdict is ever decided.
For a while, the most promising option for finality in the case was a plea deal, as with most normal death penalty cases, which would allow the defendants to plead guilty in exchange for avoiding the death penalty.
Over the course of this week, more and more details were revealed about just how far plea deal agreements were. Nevin had actually hand-delivered a copy of a proposed agreement in August 2017 to the convening authority who oversees the military commissions. However, the plan was thrown into ruins after then-Attorney General Sessions refused to promise that the Department of Justice wouldn’t pursue alternate charges against the men carrying the death penalty. Then, the convening authority, Harvey Rishikof, who was open to the deal was fired (which set off even more litigation).
Without those plans, attention has turned back to possible solutions in pre-trial hearings.
According to David Nevin and Jay Connell, the lead defense lawyers for Khalid Sheikh Mohammed and Ammar al Baluchi, the biggest barrier to trial is their access to the evidence, known as discovery in legal jargon.
Legally, the prosecution is required to turn over any evidence that the defense could use in developing its case, but it’s been reluctant to give up information that goes into detail about the CIA’s use of torture at so-called “black sites.”
Nevin said it’s been a “tooth pulling process” to get the necessary evidence out of the prosecution, which is dragging out the process. Just this week, over half of the motions that were litigated were on this very issue.
The prosecution, who has refused all media interviews since November 2017, argues that they don’t turn over information because it is classified, instead offering substitutions or summaries that enable the defense team to do what it needs.
Nevin, however, said the prosecution really just wants to keep the details of the CIA’s enhanced interrogation program “to the greatest extent possible under wraps.”
With each back and forth between the prosecution and defense—making incredibly little progress over the one week of the month that pre-trial hearings take place—more time and money is spent. Each year, in fact, the Office of Military Commissions costs the U.S. $94 million.
But a solution could be found in Congress rather than the courts.
The Senate unanimously passed a resolution calling the release of all documents related to the 9/11 attack “to the greatest extent possible.” A resolution is non-binding, meaning it’s mostly just a symbolic measure, but if the same measure were passed as a law, it could save years of pre-trial hearings.
“A great deal of the litigation would be taken away if there were just general declassification of non-operational material around 9/11 and around the CIA black sites,” Connell said. “It’s historical at this point.”
Until then, lawyers on both sides continue to do the best they can.
“You have to balance doing what’s right versus doing what’s fast,” Nevin said.