Guantanamo Bay, Cuba

Khalid Sheikh Mohammed, mastermind of 9/11, arrives in court dressed in

a headdress, tunic and short white trousers (strict fundamentalist style,
purportedly emulating Muhammad). His overgrown beard is dyed orange.
He sits smugly, legs dangling, and talks with his attorneys while
prosecutors play video footage of the Twin Tower attacks in the
ultrasecure courtroom.
Walid bin Attash, who helped select and train hijackers, and Ramzi bin al
Shibh, a member of al Qaeda’s Hamburg cell, wear camouflage jackets
and headdresses, as if they were still in the Afghan mountains. But the
camo is hunting gear from Sears—the Guantanamo Military Commission
won’t let them wear anything realistic enough to be confused with the
guards’ uniforms.
Ammar al Baluchi, KSM’s nephew and a courier for Osama bin Laden,
dresses like a prince in a fictional epic: maroon, fez-like headcap, fancy,
dark velvet vest. A richly embroidered prayer rug is slung over the back of
his chair.
Mustafa al Hawsawi, a money man, looks like a martyr dressed for the
grave, in white linen and a shawl embroidered with Palestinian flags. One
way or another, all five are projecting versions of the fantasies common to
radical Islamists.
This weeklong December hearing, which I attended as an observer,
marked the U.S. government’s first formal presentation of evidence
against the five living men most culpable for 9/11. It came during the fifth
year of pretrial motions. The trial, now projected to take place in 2019,
will no doubt be followed by many appeals. By the time it’s over, justice
will have been delayed by decades.

In the courtroom, it wasn’t hard to see why. Start with the rules, which
Congress, the Supreme Court and two administrations each had a hand in
shaping. The Guantanamo trial procedures are, with a few exceptions,
supposed to be as close as possible to those in courts-martial. As a result,
every procedural niggle is litigated from the ground up, with no
controlling precedents. The rules aim to keep the trial moving by allowing
hearsay evidence, and to avoid the controversy over “torture” by excluding
evidence obtained via contested interrogation methods. But in the constant
litigation over procedure, defense attorneys can fight the former and keep
the latter front and center.
And whereas the decisions of other war-crimes tribunals have been final or
nearly so, three Washington-based courts—the Court of Military
Commission Review, the Circuit Court of Appeals and the Supreme
Court—will all hear appeals from Gitmo. With a trial this complex, that
structure guarantees extensive litigation after the trial and overcaution
now.
Intelligence bureaucracy protocols have complicated the administration of
justice. After a defense lawyer allegedly mishandled a piece of classified
evidence, a JAG major stammered to the court that it would take a year to
resolve the matter through the bureaucracy, during which the trial would
stop. The flabbergasted judge compelled an agency head to appear in court
and speed things up.
The week I visited, a veteran prosecutor made a hash of an important
motion. Mr. al Hawsawi’s attorneys argued that under the law of war,
there wasn’t enough sustained fighting between the U.S. and al Qaeda to
meet the definition of “hostilities,” before or even on 9/11, and therefore
the court has no authority to try the defendants. Supporting this premise
was a defense expert witness, a professor of international law.
The government hadn’t called its own international-law expert, and when
the prosecutor rose to cross-examine this witness, he ran into a buzzsaw of
objections, which the judge cuts short after 12 minutes with a mercy lunch
break. In the afternoon, the judge had to intervene to ask the key
questions: Wasn’t this court designed to try the 9/11 cases?
This was the worst misstep in a week with too many of them. Nonetheless,
the government has a strong case. Prosecutors have presented proof that
Mr. al Hawsawi moved money for nine of the 17 hijackers and showed
video of him congratulating Osama bin Laden in Afghanistan after the
attacks. But being right isn’t always enough to win a trial. And for the
defense attorneys these trials are the greatest challenges of their careers.
JAG or civilian, most of these lawyers are able, principled death-penalty
opponents. But some show signs of troubling moral inversion. One told
me with a straight face that, given all her client has suffered, he should be
let out with time served. All the civilian female defense attorneys wore
Islamic headdresses when their clients were present—not at the request of
their clients, nor for religious reasons, but sua sponte, to build trust. Maybe
it works—but it also seems to aid the defendants’ efforts at costumed
theatrics. Meanwhile, two of KSM’s attorneys have recently converted to
Islam and pray with the defendants in the courtroom during breaks in the
trial.
Just as justice demands these men be executed if guilty, it also demands
they have a chance to answer the charges against them. It is a domestic
and foreign-policy imperative that the U.S. be seen to give a fair trial, and
lay its evidence before the world. But this process looks like something
else altogether—paralysis.
Defense Secretary Jim Mattis visited Gitmo around Christmas, and the
Trump administration is reportedly reviewing its approach to the trials. If
so, good. Few topics are more in need of top-to-bottom re-evaluation.
Mr. Gallagher is a second-year student at New York University Law
School. He was observing the trial on behalf of Judicial Watch and the
NYU Federalist Society.