The prosecution of alleged September 11 mastermind Khalid Sheikh Mohammed (KSM) and four others began on Tuesday, days before the 20th anniversary of the attacks, stirring new hopes for justice and retribution.
KSM and his co-defendants will appear in the military tribunal here for the first time since early 2019.
All of them have been locked up at the prison at the US naval base in Guantanamo Bay, Cuba, for nearly 15 years.
Proceedings, likely to continue where they left off 17-months ago when they were halted because of the coronavirus pandemic, may be mired by efforts by the defense to disqualify most of the US government’s evidence as ‘tainted by the torture the defendants underwent in CIA custody’.
On Sunday, the new military judge, Air Force Colonel Matthew McCall — the case’s eighth — signaled a slow start, deciding that an initial hearing focused on his own qualifications will take place on Tuesday. Lawyers for both sides are allowed in a war crimes tribunal to question the appointment of a new judge for possible bias.
The rest of the week will mostly involve meetings with the military prosecutors and defense teams.
With scores of motions lined up to demand evidence that military prosecutors refuse to hand over, defense attorneys said the pretrial phase could easily last another year, placing far over the horizon any hope for a jury trial and verdict.
Asked if the case could ever reach that point, one defense attorney, James Connell, replied, “I don’t know.”
Attorneys say the five defendants, KSM, Ammar al-Baluchi, Walid bin Attash, Ramzi bin al-Shibh and Mustafa al-Hawsawi, are “all weak and suffer the lasting effects of severe torture endured in secretive CIA black sites” between 2002 and 2006.
They will appear in an ultra-secure military commissions courtroom surrounded by fences of razor wire, each with his own defense team.
All five accused are represented by attorneys assigned by the military, as well as pro-bono lawyers from the private sector and non-governmental organisations.
“Make no mistake, covering up torture is the reason that these men were brought to Guantanamo” instead of the US federal justice system, said Connell, who represents Baluchi.
“The cover-up of torture is also the reason that we are all gathered at Guantanamo for the 42nd hearing in the 9/11 military commission,” he said.
To prove their case, the defense is demanding huge amounts of classified materials that the government is resisting turning over, on everything from the original torture programme to conditions at Guantanamo to health assessments.
Defense lawyers also want to interview dozens more witnesses, after 12 already appeared before the court, including two men who oversaw the CIA programme.
The demands have delayed the trial, but the defense blames the government for actively hiding materials relevant to the case.
Alka Pradhan, another defense attorney, noted that it took the government six years to admit that the FBI took part in the CIA’s torture programme.
“This case wears you down,” she said. “They are withholding things that are normal procedure in court.”
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