When Khalid Sheikh Mohammed, suspected “mastermind” of the 9/11 terror attacks, and four other co-defendants are arraigned by a military tribunal judge at the U.S.’ prison in Guantanamo Bay, Cuba, this weekend, it will not only be the most devastating terror attack on U.S. soil that will be on trial but also the Obama administration’s handling of the case.
Despite the unprecedented nature of the attacks, one in which 2976 lives were lost, the 9/11 case has dragged on for over a decade owing to wrenching disputes over the issue of military versus civilian courts as the appropriate venue for the prosecution of Mohammed and the others.
Mohammed, who was captured in a 2003 raid in Pakistan, was first produced in Guantanamo in 2006 after being held by the Central Intelligence Agency. When he was finally brought before a court in June 2008, along with Aziz Ali, Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, and Mustafa Ahmed Adam al-Hawsawi, the George W. Bush administration set them up to face charges in a military commission.
At Guantanamo the group of five face the prospect of being handed a death penalty if found guilty. They are charged with terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury and destruction of property in violation of the law of war.
While Mohammed sought to plead guilty in 2008 the irony was that the military commission itself was short-lived as U.S. courts repeatedly struck down assertions by the Bush government that Mohammed and his co-defendants were not subject to the protections of U.S. and international law. The process then ground to a halt.
When President Barack Obama decided to press on with the prosecution in 2009 the legal controversy on the appropriate venue only intensified. Mr. Obama, spurred on by his campaign promise to close Guantanamo entirely, pushed for the use of existing federal criminal courts on U.S. soil.
Yet vociferous opposition from the U.S. Congress and officials in New York City – the proposed site of the trial -- led to the abandonment of that idea. In 2011 Mr. Obama’s government back-pedalled on its stance and reverted to the use of the military system.
At the heart of the proceedings beginning on Saturday will be the question of whether evidence obtained through harsh interrogation techniques, described by some as torture, is admissible in this case. The CIA is said to have acknowledged that Mohammed was “water-boarded,” a process that simulates drowning, 183 times according to government documents.
For the families and friends of the victims of 9/11, many of whom were watching the arraignment on closed circuit television from U.S. army bases, the arraignment may well represent the first step towards closure after a decade lost to legal squabbles.
Before the 2008 tribunal Mohammed, along with the other four men, expressed an “earnest desire” to be martyred, saying, “I do not trust the Americans.” However given the uncertainties surrounding the very basis of their ongoing trial, it would not be a surprise if legal challenges in the case lead to the final judgement and sentence being delayed much more than many 9/11 victims’ families hope it will be.