/news/ - Soy News

>>30681 (OP)
Rather than treating the alleged al Qaeda operatives as traditional criminal defendants in the federal court system, the Bush administration developed military commissions to prosecute terrorism suspects for alleged war crimes.

"The government completely switched from the law enforcement toolkit into the military option," Lebowitz explained, adding that Congress and the Supreme Court "tinkered with the system" to create a hybrid one that saw "judges cycling in and out, plus personnel are cycling in and out."

The current judge for the 9/11 case, Air Force Lt. Col. Michael Schrama, is the fifth judge to oversee the case since the defendants were arraigned in 2012.

Lebowitz recalls the 9/11 arraignment lasted 13 hours and said it was the "longest arraignment in American history."

Why the plan to try KSM in Manhattan was abandoned

In 2009, Attorney General Eric Holder announced that Mohammed and four co-defendants would be prosecuted in federal court in Manhattan, with the Obama administration arguing that federal courts were equipped to handle major terrorism cases and could provide a fair trial.

That plan collapsed after another Guantánamo detainee, Ahmed Khalfan Ghailani, was prosecuted for his role in the 1998 U.S. embassy bombings in East Africa. His acquittals on most charges evolved into a political flashpoint in the ongoing debate over whether terrorism defendants should be tried in federal court. He was sentenced to life in prison after being convicted of conspiracy on one charge, but not on over 280 conspiracy and murder charges.

Congress subsequently restricted the government's ability to transfer Guantánamo detainees to the United States for trial, and the 9/11 terrorism case returned to the military-commission system at Guantánamo.

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Guantánamo: A "traveling circus"

While a federal courthouse in Manhattan operates every day, Guantánamo keeps a much different schedule. Lebowitz says military-commission litigation was commonly referred to by all parties as a "traveling circus."

"In order to conduct a hearing at Guantánamo Bay, the entire court system has to go to Andrews Air Force Base in Washington, D.C., and load up onto a chartered flight," Lebowitz said. "And I'm talking about judges, prosecutors, defense lawyers, witnesses, court staff, victim family members — we all go on the same flight and we fly to Guantánamo Bay to conduct a hearing."

That means a hearing is not simply a matter of walking into a courthouse and putting a case on the docket.

As personnel rotate in and out of Guantánamo, logistical hurdles mount.

"Every six months to a year, we had to litigate again very mundane, basic things such as how detainees can get bail and when they meet their lawyers," he added.

Litigating torture

Before KSM ever set foot in Guantánamo, the alleged war criminal spent years in secret CIA detention, subjected to an interrogation program that included waterboarding and coercive treatment that later became central to the legal battle over whether statements he made later before U.S. investigators could be used against him.

Prosecutors have routinely advocated to use evidence gathered following the CIA's program, but the defense argues that those later statements cannot simply be separated from years of coercive detention.

The debate has generated years of hearings over classified information, discovery and the circumstances surrounding all of the defendants' detention conditions and ongoing interrogation as judges navigate the line between the defendants' rights and the government's obligation to protect classified national security information.

A 2024 plea agreement that would have spared Mohammed and two co-defendants the possibility of execution was ultimately abandoned, sending the case back toward trial.

The defense argued that the statements were still tainted by the coercion KSM had experienced in CIA custody.

In August, a military judge ruled that the government had not established that statements KSM made to the FBI in 2007 — after his CIA detention — were voluntary and ruled to exclude them.

"I've gone through every shred of evidence in the 9/11 case, both classified and unclassified, and I feel very confident that there is enough evidence to convict KSM and the other 9/11 conspirators without those confessions," Lebowitz said.

Still, the former prosecutor conceded, "It makes the job a little harder to connect the dots of the evidence without the confessions."

The prosecution will instead have to rely on other evidence, including documentary and communications evidence that link the defendants to the plot. While prosecutors could have fought the ruling and tried to get KSM's FBI statements back into evidence, they decided not to appeal, in part because another appellate battle could jeopardize the June 2028 trial date.

Felt supports that decision: "I think that was a good choice because I think [an appeal] would have pushed things back significantly." He added, "I believe they've got enough evidence to get a conviction without the confession that was under question."

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Will 2028 finally see a trial?

While the judge has ordered jury selection and the trial to begin June 5, 2028, the date is not guaranteed.

The set schedule depends on parties meeting deadlines and milestones.

Lebowitz said that the most painful measure of how long this case has taken is the response from many 9/11 family members.

"A lot of them were elderly, and a lot of them were just hoping they can live long enough to see a court of law officially determine that KSM and his conspirators (are) guilty," he said.

Felt expressed some doubt that the trial would proceed as scheduled. "They've set dates before," he remarked. "There's — I believe — 90 rulings that have to be made by the judge before we can proceed, so I'll believe it when I see it."

After 25 years, the goal is no longer to find a date on the calendar, but to move the case into the courtroom and reach a verdict.

"No matter what happens, Ed is gone. He's been taken, stolen from his family. But for me, justice is a process of presenting the facts to the court," Felt said, adding that he supports prosecutors seeking the death penalty.

Citing the 2,977 people killed on 9/11 and the hundreds of others who died afterward as a result of the attack, Felt added, "We've lost far more people since that day —not only from cancers and respiratory illnesses that were contracted at the recovery sites and all three sites here in Somerset, in New York, and at the Pentagon, but all the military losses we've incurred over the years. Absolutely, if their guilt can be proven, we need to see the death penalty."