The military commissions have once again cancelled two weeks' worth of hearings scheduled in the case of the five alleged plotters of the September 11 attacks. Although the attacks themselves took place nearly 14 years ago, the five men accused of masterminding the deadliest terror attack to ever take place on U.S. soil are still nowhere near trial. As President Obama wrangles with his own defense department over how to keep his promise to close the prison, the stalled 9/11 case stands as one of the many glaring reasons he should be sure to get it done.
Khalid Sheikh Mohammed and his co-defendants have been described as an obstacle to Obama's closing Guantanamo, because Congress has blocked the administration's ability to transfer them to the United States for trial. But their case is actually one of the strongest reasons, as a matter of justice for the victims of the 9/11 attacks, for the U.S. government to shutter the prison and its flailing justice system once and for all.
Indeed, the military commission case that was supposed to bring the perpetrators of that heinous attack to justice hasn't had a hearing at all since last February. That hearing ended after only a few hours, when it turned out the government had assigned an interpreter to one of the defendant's legal teams who'd previously worked in one of the CIA's secret overseas prisons where terror suspects were tortured. Within minutes of that hearing's start, at least two of the accused men in the courtroom recognized him. The hearing adjourned, and the government eventually admitted that yes, it had made a mistake.
No such admission has been forthcoming in the latest issue stalling the 9/11 death penalty case - the government's attempt to infiltrate at least one of the defendant's legal teams. First discovered in April 2014, the issue apparently remains unresolved and has caused cancellation of all hearings in the case since last February.
The problem stems from when the FBI decided to investigate at least one and maybe more members of the legal defense teams in the 9/11 case, for some still unspecified reason. In April of last year, lawyers for Ramzi bin al Shibh discovered that the FBI had attempted to turn the team's security officer into an informant. After they complained, the court ordered an investigation. Despite appointment of a special team of lawyers from the Justice Department in Washington to handle that investigation, almost a year and a half later, the question of whether the FBI created a conflict of interest remains unresolved.
Lawyers for the defendants had claimed that without knowing why one among them was being investigated, they all reasonably fear investigation, which hampers their ability to zealously represent their clients, which their ethical obligations require. Government prosecutors, however, say the defense lawyers have no right to know why the FBI attempted to infiltrate one or more of the 9/11 case defense teams, that whatever investigation was conducted has since been dropped, and that the case should proceed as usual.
This is only the latest in a long series -- several years' worth -- of suspicious mishaps and mistakes that all center around whether and how the government has tried to interfere with the legitimate legal defense of the five accused men. Previous issues in the case have included whether the CIA was monitoring private attorney-client interviews and courtroom communications, and the fact that government agencies could access the defense lawyers' computer systems and confidential data. Each discovery has rung alarm bells among the defense lawyers, who understandably warn that government intrusion on their communications makes it impossible for them to maintain confidential communications with their clients, which is essential to legitimate and ethical legal representation. Each issue has added months or years of delay to the case. There is still no trial date scheduled.
Moving this case -- and moving all the military commission cases -- to U.S. federal courts, where there are clear and established procedures for trying terrorism cases while maintaining attorney-client confidentiality, would put a swift end to these delays. It would also restore some faith in the U.S. government's ability to try these cases fairly, something the antics of the military commissions years ago destroyed.
President Obama says he remains committed to closing Guantanamo. As he attempts to negotiate a deal with Congress to allow that to happen, he should remind lawmakers of the 9/11 victims, their families and communities. They all faced an unspeakable horror. And to date, they have yet to see anyone held accountable for it.
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