Justice System For Detainees Is Moving At a Crawl

A U.S. guard watches over the detention compound at Guantanamo Bay, Cuba, from a tower. Defense officials have said they want to begin trying Sept. 11 suspects held at the prison before the Bush administration ends, but those involved say that is highly unlikely to happen.
A U.S. guard watches over the detention compound at Guantanamo Bay, Cuba, from a tower. Defense officials have said they want to begin trying Sept. 11 suspects held at the prison before the Bush administration ends, but those involved say that is highly unlikely to happen. (By Brennan Linsley -- Associated Press)

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By Josh White
Washington Post Staff Writer
Tuesday, May 6, 2008

GUANTANAMO BAY, Cuba -- At the end of a tattered, sunbaked runway dotted with large green tents here is a building aptly called the Expeditionary Legal Complex Courtroom, surrounded by coils of concertina wire, where the most notorious alleged terrorists in U.S. custody are supposed to face charges related to the Sept. 11, 2001, attacks.

Nearly seven years later, however, not one of the approximately 775 terrorism suspects who have been held on this island has faced a jury trial inside the new complex, and U.S. officials think it is highly unlikely that any of the Sept. 11 suspects will before the Bush administration ends.

Though men such as Khalid Sheik Mohammed, the alleged Sept. 11 mastermind, are expected to be arraigned in coming months -- appearing publicly for the first time after years of secret detention and harsh interrogations -- officials say it could be a year or longer before worldwide audiences will see even the first piece of evidence or testimony against them.

"I think it's a near-impossibility that these cases will be in court before the end of the administration," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, who has observed numerous court hearings on the island.

"Some of the detainees haven't even seen their lawyers yet, there's incredibly complicated issues about access to evidence and discovery, and as we've seen with every single case to date, it's incredibly hard to move through a system that lacks established rules and precedent," she said. "Every little detail ends up being contested, because it's an entirely new system of justice."

That new system, set up by Congress's Military Commissions Act of 2006, so far has been entangled by numerous motions that challenge its fairness and constitutionality. Military officers presiding over the cases have had to make critical decisions on the fly, including some appealed to another new court created by the same legislation.

Although defense officials have said they want to start the Sept. 11 trials before the Bush administration ends -- and one high-ranking Pentagon officer has been quoted talking about the "strategic political value" of doing so before the November elections -- those involved privately agree that opening statements could be a year or more away.

Lawyers for some of the detainees jointly charged in the 2001 attacks say they are going to have to navigate an unprecedented volume of classified evidence and complex legal issues, and to mount a defense against the death penalty -- all matters that have not been adjudicated in earlier detainee cases.

Susan Crawford, who supervises the military commissions process, has not yet even formally referred the Sept. 11 cases to trial, although arraignments could occur a month or so later.

Air Force Brig. Gen. Thomas Hartmann, the top legal authority in the Pentagon's Office of Military Commissions, said: "Assuming it's referred, I expect there to be vigorous litigation by the defense community and the prosecution community." He declined to speculate how long it might take but said: "It will be helpful to the process for there to be a litigated case."

Since the U.S. detention facility on this southeastern corner of Cuba opened in January 2002, only one military commission has reached a verdict, when Australian David Hicks pleaded guilty to terrorism charges in March 2007. It was part of a politically orchestrated deal that returned Hicks to his home country to serve out his sentence. He was released Dec. 29.

None of the other 14 Guantanamo Bay detainees charged with crimes, including the six alleged Sept. 11 co-conspirators, has seen a courtroom for anything other than arraignments or legal motions.


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