'9/11 Five' head back to court, though trial is still distant

Thomas Watkins
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Khalid Sheikh Mohammed, alleged organizer of the September 11, 2001, attacks, shortly after his capture in 2003

Khalid Sheikh Mohammed, alleged organizer of the September 11, 2001, attacks, shortly after his capture in 2003 (AFP Photo/)

Guantanamo Bay Naval Base (Cuba) (AFP) - The five men accused of plotting the September 11, 2001 attacks -- including the alleged mastermind -- are this week due back in US military court, though their prospects for an actual trial remain elusive.

More than 14 years after Al-Qaeda hijackers seized four passenger jets and killed about 3,000 people in New York, at the Pentagon and in Pennsylvania, the "9/11 Five" who allegedly helped hatch the plot remain holed up in the US military's prison at Guantanamo Bay in southeastern Cuba.

Their case is moving at a snail's pace, slowed by numerous defense motions and allegations of government misconduct, coupled with the logistical headache of flying the judge, lawyers and other staff into and out of the US naval base every time the men appear in court.

At the center of the case is Pakistan-born Khalid Sheikh Mohammed, who was arrested there in 2003 and subjected to "enhanced interrogation" by the Central Intelligence Agency, including numerous waterboarding sessions and "rectal rehydration."

He was transferred to Guantanamo in 2006 and has publicly admitted to being the principal planner behind the 9/11 attacks.

The other four accused are: Walid bin Attash and Ramzi Binalshibh of Yemen, Ali Abd al-Aziz Ali -- Mohammed's nephew -- and Mustapha al-Hawsawi of Saudi Arabia.

All five defendants face the death penalty, but any verdicts are likely years away. This week's proceedings are all pre-trial hearings, with Monday's session to be closed between the judge and lawyers.

The judge, Colonel James Pohl, will try to sift through a slew of defense motions, including one seeking to depose a former CIA interpreter who was working on one of the defense teams.

Further complicating matters is a workplace dispute, in which women prison guards complained after Pohl ordered them to stop escorting detainees.

The defense had argued that Mohammed experienced sexual humiliation while being tortured by the CIA.

"He's a torture victim," Mohammed's lead attorney David Nevin told AFP. "Having to be handled by female guards recapitulates the torture."

Pohl in January ordered the women guards to stop touching the detainees, prompting outrage from senior defense officials including Pentagon chief Ashton Carter.

- 'Not driven by a timeline' -

Brigadier General Mark Martins, the lead prosecutor, acknowledged frustration among some relatives of 9/11 victims is palpable, but the process is moving as fast as possible.

"That's the system we set up, and it is not driven by a timeline," he told reporters.

"I understand people's frustrations. I hear it all the time, I've got to deal with it. I've got to do our duty in the law."

Eight relatives are attending this week's hearings. Phyllis Rodriguez, who lost her son in New York, said she would prefer to see a slower process, so long as it is an effective one.

"A lot of people are impatient that it's taken so long," she said.

"I say let it take as long as it has to, to be done right... If we forego some of the rights of these guys in order to have a speedy trial... then who's next, then what group do we single out next?"

The five defendants cannot currently be brought to America to stand trial in federal court, so are being prosecuted in so-called military commissions.

In return for recognizing Cuban sovereignty as the island fought the Spanish for independence, the United States made Havana sign an open-ended lease in 1903 to create the 45-square-mile (117-square-kilometer) military base.

It's about 575 miles by road from Havana -- not that you could drive straight there. Guantanamo Bay remains sealed off from Cuba by razor-wire fencing, huge cactuses and landmines.

Obama has been trying to close Guantanamo since taking office in 2009, but Congress has balked at his efforts. He tried to put the five on trial in New York, but the effort proved too controversial.

Critics of the prison say it serves as a jihadist propaganda tool and shows how America lost its moral compass under the George W. Bush administration in the aftermath of 9/11.

"It is worth remembering the pervasive fear in late 2001 and how immediate the threat felt," Senator Dianne Feinstein wrote in a notorious Senate report into CIA torture released only last year. "We expected further attacks against the nation."

Though the government maintains detainees are held humanely, defense lawyers argue the Kafkaesque nature of indefinite detention is itself unfairly cruel.

"The idea of holding someone for that many years with no idea of whether they'll be free again, not putting them on trial, not imposing a sentence, is something that is a form of torture," said attorney Jonathan Hafetz, who has helped litigate for Guantanamo detainees and co-written a book on the prison.

Martins disagrees with the assertion.

"That's not what the law says," the general said. "The restraint on freedom is nothing I will ever trivialize, but it's not punishment. Purpose matters, and the law matters on these things."

Richard Kammen, who has a client in another Guantanamo case, said as a "knowledgeable but outside observer," that he thought the 9/11 Five would not be tried anytime soon.

"The 9/11 case is years away from a trial beginning," he said in a phone interview. "I estimate four, minimum."