GUANTANAMO BAY NAVAL BASE, Cuba – An effort to prosecute the self-proclaimed mastermind of the Sept. 11 terrorist attack and four co-defendants veered off track again Thursday as a pretrial hearing ended with new obstacles that threaten to further derail the case before a military tribunal at Guantanamo Bay.
Teams of lawyers managed barely four hours of court time over four days at the U.S. base in Cuba, bogged down by the potential legal implications of an apparent FBI investigation of the defense.
After nearly two years and 10 pretrial sessions, a trial date remains elusive and could be years away. The prosecution had sought to start jury selection early next year, but that now seems impossible amid looming fights over classified evidence from the CIA among other issues.
The prosecution of Khalid Sheikh Mohammed has already been stalled for years, initially by the U.S. government's decision to hold him in secret detention and later by legal challenges and a fight over whether to try him in civilian or military court. For observers whose family members were killed in the Sept. 11, 2001, attack, the pace has been excruciating.
"This week has been difficult because it brings back a lot of emotion," said Gloria Snekszer, an Atlanta-area woman whose sister, Vicki Linn Yancey, was killed on the plane that crashed into the Pentagon.
"One of the hardest things for me to deal with was the constant delay, the thought that this may never come to conclusion," said Snekszer, who was at Guantanamo this week as an observer.
Some family members were so angry about the situation that they walked out of a private meeting Wednesday with defense lawyers intended to help them understand the process. "It is one thing to have a fair trial, it is another to drag it out and drag it out," said Don Arias, a resident of Panama City, Florida, whose brother, Adam, was killed in the World Trade Center.
The five defendants were arraigned in May 2012 on charges that include terrorism and nearly 3,000 counts of murder in violation of the law of war. They have yet to formally enter pleas, but Mohammed has told authorities that he orchestrated the terrorist plot. The other four are accused primarily of providing financial and other logistical support to the hijackers. All could get the death penalty if convicted.
The case is complex in part because of the number of defendants, with the government spending about $90,000 to fly in participants for each pretrial session, and the global scope of the investigation that both sides must conduct. It is also complicated by the fact that the defense is seeking large amounts of classified evidence about the treatment the men endured while in CIA custody at secret overseas detention facilities.
In December, the judge halted progress on pretrial motions because prosecutors wanted to determine the mental competency of defendant Ramzi Binalshibh after his repeated outbursts in court. That was supposed to the subject of a hearing this week until his attorney disclosed that a member of his defense team had been interviewed by two FBI agents and was asked about the conduct of other defense teams.
The judge, Army Col. James Pohl, is conducting a formal inquiry into the apparent investigation, apparently triggered after an essay by Mohammed was released by his defense team without passing through the normal security review.
Defense lawyers say the FBI investigation could create a conflict of interest between them and their clients, and may require appointing independent counsel for each team, a process that could take months because of the need to obtain security clearances. Some may even have to step down depending on the scope and nature of the FBI investigation.
A new fight is also emerging over evidence. Lawyers say they will seek evidence from the CIA that the judge has ordered the government to turn over in a separate trial in the attack on the USS Cole, a request likely to produce a drawn-out legal fight.
Army Maj. Jason Wright, a lawyer for Mohammed, said he understands the frustration of family members and the public but says the government is largely to blame.
"If they had brought Mr. Mohammed to trial on March of 2003 when he was captured, one would think the case would certainly have been resolved one way or the other by now," Wright said.
The chief prosecutor, Army Gen. Mark Martins, shrugged off suggestions that the case could be resolved more quickly in a civilian court, noting that Congress has barred any venue but Guantanamo. The drawn-out process, he said, comes as no surprise. "When each of us was assigned to this important mission, we were prepared for a marathon."