The wheels of justice often turn slowly.
But in the case of Military Commission proceedings held at the U.S. Naval base at Guantanamo Bay , Cuba, they often seem to barely turn at all.
By this summer, lawyers handling the prosecution of Khalid Sheikh Mohammed , the accused mastermind of the Sept. 11 terrorist attacks , and two of his alleged accomplices were at an impasse.
Since their arraignment in 2012, pretrial proceedings for the accused had progressed at a snail’s pace that would rival the plodding machinations in the Charles Dickens classic Bleak House.
The case against Mohammed and his henchmen was vastly complicated by protracted legal challenges to the admissibility of evidence, including confessions that may have been coerced by torture at so-called CIA black sites.
Prosecutors were looking at a schedule in which jury selection for a criminal trial would not begin until 2026 and would likely not conclude until sometime in 2028.
It was entirely possible that some of the defendants could die at the remote prison camp before any verdict was rendered.
The team of four prosecutors, deciding justice had been too long delayed, concluded 27 months of negotiations by signing a plea deal that would spare the alleged 9/11 plotters the death penalty in return for an agreement not to appeal their sentences.
The defendants — Mohammed, Walid bin Attash, and Mustafa al-Hawsawi — who had been in custody since 2003, also agreed to answer written questions from relatives of the 2,976 people killed in the 2001 terrorist attacks .
“The decision to enter into a pre-trial agreement after 12 years of pre-trial litigation was not reached lightly,” the prosecutors wrote in a letter to the families, “However, it is our collective, reasoned, and good-faith judgment that this resolution is the best path to finality and justice in this case.”
The blowback was immediate and intense.
While some 9/11 families saw some closure in that an interminable legal morass was finally ending, many more were furious that the perpetrators of one of the most heinous acts on U.S. soil would escape the fate they visited on innocent people.
“They just took away the justice I was expecting, a trial and the punishment," Terry Strada, the head of a group representing families of victims who died on 9/11, told the Associated Press.
“They were cowards when they planned the attack,” she said. “And they’re cowards today.”
Members of Congress were similarly outraged.
“Deals like this give hope to terrorists throughout the world that America is not willing to hold the worst of the worst accountable for their wicked crimes,” said Rep. Mike Rogers (R-AL) chairman of the House Armed Services Committee. "In short, this deal signals willingness to negotiate with terrorists who deliberately harm Americans."
Defense Secretary Lloyd Austin was also blindsided by the independent military judge who signed off on the deal.
He learned of the plea agreement while flying back to Washington from the Philippines and was not pleased.
Two days later, Austin invoked his power as the ultimate military convening authority to revoke the deal and order that all three accused terrorists face a death penalty trial.
“I’m deeply mindful of my duty to all those whose lives were lost or changed forever on 9/11, and I fully understand that no measure of justice can ever make up for their loss,” Austin said at a State Department event a few days later. “So, this wasn’t a decision that I took lightly, but I have long believed that the families of the victims, our service members, and the American public deserve the opportunity to see military commission trials carried out in this case.”
Pentagon and White House officials insisted from the start that neither Austin nor President Joe Biden was aware the deal was in the works, even though prosecutors had been working on it for more than two years.
Austin’s intervention quelled the outrage but added a new legal complication to the case.
Did Austin run afoul of a provision of the Uniform Code of Military Justice that prohibits what’s known as unlawful command influence?
Under law, senior military officers and civilian officials may not, through words or actions, influence the outcome of a court-martial or other military tribunal.
“It was an independent decision by him, certainly within his authorities, as in the chain of command at the Defense Department,” John Kirby, White House national security communications adviser, insisted on Fox.
But lawyers for the defendants are arguing the government should be bound by the agreement signed by retired Brig. Gen. Susan Escallier, the military judge Austin appointed.
Another military judge has scheduled a hearing for mid-September on whether Austin’s actions were lawful as the case reverts to its pattern of protracted pretrial proceedings.
Last month, the Pentagon invited interested reporters to take a military flight to Guantanamo and stay in a rudimentary tent city to cover the next scheduled pretrial motions set for Nov. 4–22.
If history is any guide, only one reporter will stick it out for the whole three weeks: Carol Rosenberg of the New York Times, who has covered every proceeding since the first detainees were flown to Gitmo in orange jumpsuits in 2002.
As the case grinds on, at least one family member believes killing the plea deal was a mistake.
“The best possible resolution for this was to bring it to a close: They admit what they did, they agree to cooperate, and their sentence is life imprisonment. Period,” former Solicitor General Ted Olson, whose wife Barbara died on the plane that hit the Pentagon, told Rosenberg last month.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Olson is among critics who believe that any death sentence handed down would end up in endless appeals over the same arguments about tainted evidence and coerced confessions.
“There was never going to be an enforceable death penalty anyway,” Olson told the New York Times. “It was not going to happen, and this was going to go on forever and ever.”
Most Popular
Comments / 0