Defense lawyers for the alleged architects of the 9/11 terror attacks are fighting to allow their clients to view highly classified government documents, a move that has significantly delayed the terror trials and raised questions about the detainees’ legal rights.
The trial was further delayed several times due to the alleged terrorists complaining of back spasms and a "gastrointestinal issue."
Alleged 9/11 mastermind Khalid Sheikh Mohammed and several co-conspirators appeared in military court on Monday at the Guantanamo Bay Naval Base, where pretrial hearings continue to take place ahead of a long delayed death penalty trial.
The accused are among Guantanamo’s most dangerous and highly valued inmates. They stand accused of planning and funding the 9/11 terror attacks that killed nearly 3,000 Americans and destroyed New York City’s Twin Towers.
The flagship terror case—the largest in U.S. history—has stagnated in legal limbo for years, as defense lawyers file motion after motion aimed at eliminating evidence and challenging the military court’s fundamental right to try the alleged terrorist leaders, all of whom face the death penalty.
U.S. government lawyers have moved to schedule the trial for September 2014, prompting the defense to lodge multiple objections.
Defense lawyers for the inmates have refused to sign memoranda of understanding that would allow them to view classified documents. The case cannot move to trial until the agreements are settled.
The accused terrorists should be permitted to view the classified government evidence presented against them, defense lawyers argued before U.S. military judge Col. James Pohl on Monday.
"You want to kill [Sheikh Mohammed] at the end of the day and I’m saying you have to … show him the information that bears on whether he’ll be killed," argued one of the defense attorneys. "It’s not fair to execute a man when you have not given him everything in the government’s possession that bears on whether he should be executed."
Judge Pohl criticized the defense for prolonging pretrial proceedings and failing to comply with his final order regarding detainee treatment issues.
"The defense can’t take the position, ‘We’ve got this order from the judge, we’re going to ignore it,’" and file further motions that only clog the court’s docket, Pohl said.
The defense could theoretically hold up the proceedings indefinitely.
"I understand your need to know where this case is going, but it seems to me that this would never end it," Pohl said. "When does it end?"
The hearings were delayed at several junctures on Monday due to the alleged terrorists purportedly feeling ill.
One entered the courtroom wearing a neck brace, while another, Walid Muhammad Salih Mubarak bin 'Attash, was forced to take a nap mid-hearing due to a "gastrointestinal issue," according to his attorney.
Bin ‘Attash has an "unidentified swelling, or a mass that sits underneath the sternum," his lawyer said. Bin ‘Attash also has "a pain underneath the right rib cage of an unidentified source."
A military doctor was brought into the courtroom to testify that bin 'Attash's stomach issues could "cause a general gastritis" and also "diarrhea," which is one of the accused terrorist's symptoms.
Nearly 30 additional motions filed by the defense are still awaiting consideration. Most of them center on legal technicalities.
Among other motions, the defense is seeking "dismissal of all charges due to their improper referral by the Convening Authority," as well as the "dismissal of all charges due to the unlawful influence exerted by senior administration officials, members of congress, and military leadership."
Due to these pending motions, "setting a trial schedule at this time would be illusory and unproductive," the defense argued in a recent brief.
As they seek to delay the proceedings, the defense has argued that the government is responsible for the repeated hold-ups.
"United States Government officials, openly and shamelessly jockeying for political position, have seen fit to delay this trial for more than 10 years by concocting one substandard system of ‘justice’ after another while in the process mutilating time-honored constitutional principles," the defense argued in its brief.
"Now, the right side of the Government’s mouth sanctimoniously preaches that the schedule this commission has set does not serve the interests of justice, even as the left side continues to perpetuate delay through its ‘position of the day’ approach to litigation," the brief states.
As the 12th anniversary of the 9/11 attacks approaches, the defense has maintained that the government wants to unfairly speed things along.
"The Government’s demand to rush this case to judgment […] should not be allowed to run roughshod over legitimate and valuable interests in due process and the fair administration of justice," the defense argued.
"There are numerous motions yet to be heard, and numerous outstanding discovery and witness questions related merely to pending motions, not even to the upcoming litigation surrounding the case-in-chief," the defense argued.
"Resolution of these pending motions has been delayed for many reasons, including the simple fact that trying a case between the United States and Guantanamo presents substantial difficulties, and continual but unpredictable obstacles," the brief maintains.
The defense is requesting that the trial be delayed for the foreseeable future.