Sixteen Years Later, No Date in Sight for Death-Penalty Trial of Alleged 9/11 Conspirators
Sixteen years later, the alleged perpetrators of the September 11, 2001 hijackings and attacks on the Pentagon and World Trade Center, and the downing of Flight 93, have yet to be tried, and issues relating to the use of evidence obtained by torture, the appropriateness and legality of trials by military commission, and where and how they should be tried raise questions as to whether and when a trial may take place. The five men charged in the attack—alleged mastermind Khalid Sheikh Mohammed and alleged co-conspirators Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al-Hawsawi—remain detained in Guantánamo Bay, Cuba, facing 2,973 individual counts of murder. Mohammed was captured in Pakistan in 2003 and turned over to the CIA, charged in 2008, and arraigned in 2012. A 2014 report on CIA interrogations by the U.S. Senate Select Committee on Intelligence—known as “The Torture Report”—documents that Mohammed was subjected to numerous acts of torture, including sleep deprivation, "rectal rehydration," and being waterboarded 183 times in a single month. As with the case of accused USS Cole bombing suspect, Abd al Rahim al Nashiri, the five defendants have accused the government of continuing misconduct and are challenging the legality of the military commissions that have been established to conduct the terrorism trials, the use of evidence obtained by means of torture, and the destruction of evidence they say is vital to defend the case. Military prosecutors have requested a January 2019 trial date, with fast-tracked briefing deadlines that trial judge Army Col. James L. Pohl has already said he will not adopt. But given the numerous pre-trial issues that need to be resolved, defense lawyers say it could be years before the men face trial. These issues include whether the judge and his staff have a high enough level of security clearance to review top secret documents that are critical to defense motions challenging the reliability of confessions made to FBI agents by defendant Ammar al-Baluchi in post-torture interrogations conducted shortly after al-Baluchi arrived at Guantánamo in 2006. Another issue is whether the defendants should be tried in civilian court or by a military commission. In 2011, then-Attorney General Eric Holder warned that Mohammed’s case could take years to bring to trial unless it were transferred to a civilian court. Michael Bachrach, an attorney who represented Ahmed Ghailani, the Tanzanian al-Qaida terrorist convicted in New York in 2010 for his part in the 1998 bombings of US embassies in Kenya and Tanzania, says that Ghailani’s case proved that a fair civilian trial is possible. “We had classified and unclassified material involved, torture involved, and the jury saw what was necessary for them to see," Bachrach said. "Can Mohammed get a fair trial by military commission? I’m not as confident about that.” Mohammed's lawyer, David Nevin, told The Guardian that, once it gets started, the trial itself could last for more than a year, followed by appeals that could take nearly two decades. “There’s every possibility that [Mohammed] will die in prison before this process is completed,” he said. With the reduced life expectancy of "someone who’s been tortured," he said, "you have to ask, why exactly are we doing this, or doing it in this way? We are spending millions and millions of [public] dollars every week for something that could be pointless.”
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Federal Appeals Court Removes Military Judge From Case For Comments Prejudging 9/11 Detainee's Guilt
A federal appeals court in Washington has ordered the recusal of a military judge from hearing an appeal in the Guantánamo military commission death penalty trial of five defendants accused of direct responsibility for the 9/11 attacks. A unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled on August 8 that Judge Scott L. Silliman of the United States Court of Military Commission Review (CMCR) was disqualified from participating in appeals in the case because of prior public comments he had made prejudging the guilt of accused 9/11 conspirator Khalid Sheikh Mohammad. Lawyers for Mohammad had petitioned the court to have Silliman removed from the case, citing more than a dozen instances in which, they said, Silliman had made comments exhibiting a constitutionally intolerable risk of bias. Before becoming a judge, Silliman gave an interview to The World Today in 2010 about the case of Guantánamo Bay detainee Ahmed Khalfan Ghailani. During that interview, he said: “We’ve got the major conspirators in the 9/11 attacks still at Guantánamo Bay—Khalid Sheikh Mohammed and four others.” Later in the same interview, Silliman compared Ghailani's culpability to that of Mohammed, calling them "two totally different types of cases” and saying “the magnitude of what they did is very different.” The judges wrote that “the Court can hardly perceive how calling Petitioner one of the ‘major conspirators in the 9/11 attacks’ and referring to what he 'did’ is anything other than the expression of an opinion concerning his responsibility for those attacks.” Such statements, they wrote, required Silliman to disqualify himself from the case. Because “Judge Silliman failed to do so," the court wrote, Mohammad had provided "clear and indisputable” grounds for his removal. Mohammad's petition also cited remarks made by Silliman in a 2008 interview with the Los Angeles Times, where he said that “we’re going to have a military commission for those the United States believes, and most of the world acknowledges, to be ring leaders of the 9/11 attacks.” The petition also said that Silliman was quoted in another media interview in 2011 discussing how and where Mohammad “will be” executed. The ruling vacates a June 29 order by the CMCR that had reinstated two charges against the defendants that the trial judge had dismissed. The CMCR will now have to re-hear the government's appeal of that issue before a new panel. University of Texas Law Professor Steve Vladeck, who represents several Guantánamo detainees in petitions seeking U.S. Supreme Court review of their cases, called the decision “yet another stinging rebuke" of the CMCR by the Court of Appeals. He said the decision in Mohammad's case puts off resolution of another question raised concerning the CMCR, “whether active-duty military officers (including the other two judges on the CMCR panel that originally heard the government’s appeal) may lawfully serve as judges on the CMCR."
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Lawyers Seek Supreme Court Review Of Alleged Torture As Accused USS Cole Bomber Awaits Capital Trial
Lawyers for Abd al Rahim al Nashiri, the man accused of plotting the bombing of the USS Cole in 2000, are seeking U.S. Supreme Court intervention to prevent his trial before a military tribunal in which Nashiri faces the death penalty if convicted. The petition for a writ of certiorari asks the Court to allow Nashiri's lawyers to challenge his military detention—and efforts to try him in a military tribunal rather than a civilian court—because the CIA admittedly subjected him to 14 years of "physical, psychological and sexual torture." Hundreds of pages of documents chronicle Nashiri's experiences. These documents include evidence that Nashiri was subjected to waterboarding, forcible sodomy, starvation, rectal force-feeding, sleep deprivation, being placed in a coffin-sized box for a total of 11 days and a box the size of an office safe for 29 hours, and being threatened with a racked gun and a revved power drill while being suspended, naked and shackled, from the ceiling of a cell in a black site one CIA agent described as "the closest thing he has seen to a dungeon." Dr. Sondra Crosby, an expert on the medical and psychological effects of torture, wrote in October 2015 that Nashiri, "is most likely irreversibly damaged by torture that was unusually cruel and designed to break him." She predicted that Nashiri is likely to "decompensate fully during his trial." The heavily redacted descriptions of torture contained in Nashiri's petition are based on a prosecution timeline of his time at black sites, a gradual collection of declassified information, and recently published memoirs by a former CIA contract psychologist. All of the interrogation practices are also documented in the U.S. Senate Select Committee on Intelligence's controversial 2014 report, known as “The Torture Report.” Nashiri's case presents a range of important factual, legal, and evidentiary issues, but without Supreme Court intervention, he will not have any legal mechanism to obtain appellate review of them prior to trial. Although Nashiri is considered one of Guantánamo’s 15 most “high-value” prisoners, detained in a secret location in a special jail known as "Camp Seven," his lawyers argue he is actually an intellectually limited al-Qaeda foot soldier, not a criminal mastermind. In a federal civilian court, evidence obtained as a result of the torture to which the CIA admits Nashiri was subjected would be inadmissible; but in a military tribunal, there are questions whether that evidence may be admitted and whether the fact and extent of his torture may be used as evidence in his defense. In addition, Nashiri's case involves potentially sensitive national security matters and CIA videotapes of some of Nashiri's interrogations may have been destroyed, leaving questions both as to what information the government may withhold and what sanctions, if any, there should be for evidence it may have destroyed.
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President Obama Commutes Two Death Sentences
On January 17, 2017, President Barack Obama (pictured) commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th. Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty. In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment." Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die. Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.
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